DocketNumber: No. 2898
Citation Numbers: 26 Tex. Ct. App. 514
Judges: Willson
Filed Date: 12/5/1888
Status: Precedential
Modified Date: 9/3/2021
We are of the opinion that the testimony •of the absent witnesses, as set forth in the application of the defendant for a continuance, is, in view of the evidence adduced
It is true that defendant’s application for a continuance does not show legal diligence to obtain the testimony of the absent witnesses, and because it was in this respect insufficient, the the court did not err in refusing to grant the continuance. But in reviewing the matter on defendant’s motion for a new trial, the question of diligence should have been disregarded, and the only inquiry in the mind of the court should have been, is the absent testimony material to the defendant, and is it probably true? If the evidence adduced on the trial demands an affirmative answer to such inquiry, a new trial should be granted the defendant, notwithstanding his application for a continuance was properly refused. (Willson’s Crim. Stats., sec. 2186; McCline v. The State, 25 Texas Ct. App., 247; Cordway v. The State, Id., 405.) Such answer is, in our opinion, demanded by the evidence, and the court erred in not granting the defendant a new trial.
We find no material error in the charge of the court, nor in any ruling or action of the court except the one above mentioned. We shall not discuss the sufficiency of the evidence to sustain the conviction. On another trial the facts proved may differ materially from those now before us.
The judgment is reversed and the cause is remanded.
jReversed and remanded»