Brooks v. State , 26 Tex. Ct. App. 87 ( 1888 )

Willson, Judge.

A vital issue upon the trial of this case was whether the wounds inflicted upon the injured party were inflicted by the defendant or by one Tom Johnson. The injured party, who is the principal witness for the State, positively testified on the trial that the defendant inflicted the wounds, and denied that he had ever stated that Tom Johnson inflicted them. It was proved by three witnesses produced by the defendant that the injured party, very shortly after receiving the wounds, stated to them that Tom Johnson was the person who inflicted the wounds. JSTo other witness except the injured party testified that the defendant inflicted the wounds, but all of the witnesses who saw the difficulty testified that Tom Johnson was present, and was engaged in the struggle between the injured party and the defendant.

Opinion delivered October 10, 1888.

Defendant applied for a continuance because of the absence of said Tom Johnson. His application shows sufficient diligence, and in all other respects conforms to the requirements of the statute. It was refused by the court.

In view of the suspicion cast upon the testimony of the prosecuting witness, and. of the uncertainty of the evidence when considered all together, as to whether the defendant or Tom Johnson inflicted the wounds upon the injured party, we think the facts expected to be proved by said Johnson, as set forth in defendant’s application for a continuance, are both material and probably true, and that the trial court should have granted the defendant a new trial. Although Tom Johnson may have inflicted the wounds, not being charged with the offense by indictment or information, he was competent to testify in behalf of the defendant. And if he inflicted the wounds of his own accord, without the concurrence of the defendant, the defendant would not be responsible therefor. Of course, if the evidence should show that the defendant and Johnson acted together in committing an assault upon and wounding the. injured party, they would be equally guilty, although Johnson alone inflicted the wounds. These are questions which the jury must determine from the evidence, under proper instructions; and it is the defendant’s right, we think, to have the testimony of the witness Johnson before the jury, to be considered and weighed with the other evidence in the case, in arriving at the truth of vital facts about which serious doubt now exists.

There are no other questions presented that demand attention. Because the court erred in refusing the defendant a new trial, to enable him to obtain the testimony of the absent witness, Tom Johnson, the judgment is reversed and the cause is remanded.

Reversed and remanded.