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White, Presiding Judge. The only real question presented by the record on this appeal hinges on the correctness of the final action of the court upon defendant’s application for a continuance. When first presented it was unquestionably properly overruled by the court, because it failed in one of the statutory requirements, in that it did not allege that there was no reasonable expectation of securing the attendance of the absent witnesses during the term of the court by a postponement of the trial to a future day thereof. (Code Crim. Proc., Art. 560, subdiv. 6; Strickland v. The State, 13 Texas Ct. App., 364.) But, as was said in Strickland’s case, “ while the overruling the application would not in the first instance be the subject of revision by this court, yet it should be taken into consideration by the court below in passing upon defendant’s motion for new trial, and will be considered by this court in revising the action of the court in refusing a new trial.” (P. 371; see also Stanley v. The State, decided at the present term, ante, p. 392.) -
*431 It is urged, however, as an additional reason for sustaining the court on the motion for new trial, that the refusal of the continuance asked was not error because it appears that the testimony of the absent witnesses was fully supplied from other source's, and that no injury resulted to the defendant. This proposition, if warranted by the facts, is supported by authority. (Parkerson v. The State, 9 Texas Ct. App. 72; Allison v. The State, 14 Texas Ct. App., 402; Wooldridge v. The State, 13 Texas Ct. App., 443.) In this case, however, the evidence adduced does not supply that sought from the absent witnesses in more than one material respect.Under the peculiar circumstances of this case as made by the evidence, we are of opinion that the court erred in not granting a new trial, when the proposed evidence stated in the application for continuance is considered in connection with that elicited on the trial. That it was material is evident; that it was not probably true is not made sufficiently manifest by the testimony adduced.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered June 11, 1884.
Document Info
Docket Number: No. 3185
Citation Numbers: 16 Tex. Ct. App. 421, 1884 Tex. Crim. App. LEXIS 131
Judges: White
Filed Date: 6/11/1884
Precedential Status: Precedential
Modified Date: 11/15/2024