McKinney v. State

Conviction for disturbing religious worship. On a former appeal, the judgment was reversed on account of a variance between the information and complaint, and the county attorney was ordered to file a new information. McKinney v. State (Texas Criminal Appeals), 49 S.W. Rep., 376. This, it appears, was done, and the trial was had under the new pleading. Appellant was not rearrested, but voluntarily answered. He moved for continuance because of the absence of various witnesses. The State relied upon evidence showing appellant disturbed several persons in a church during religious services. He alleges that he expected to prove by the absent witnesses, who were also in the church on said occasion, — some of them sitting very near him, — that he did not talk or make the disturbance relied upon by the State. We deem it unnecessary to go into a detailed statement of the facts adduced by the State, or those set up in the motion for continuance. This was appellant's first application. For a continuance under said new pleading, this was a new case. Turner v. State, 21 Texas Crim. App., 198. On motion for new trial, if the testimony of the absent witnesses appears material and probably true, the court should grant the same, where in the first instance the motion for continuance was overruled. The evidence set up in the motion is certainly material, and the jury might have believed it. The affidavits of several of the absent witnesses are appended to the motion for new trial. The affidavits sustain, in the main, the application for continuance. The continuance should have been granted, and, failing so to do, the court should have awarded a new trial.

There is another question in the record necessary to be noticed. Motion was made to retax costs. The cost bill includes all items accruing in the former prosecution, including the costs of this court on appeal. Under the Turner case, supra, the filing of the new information was the commencement of a new proceeding, and all the items of costs accruing prior to the filing of the second information should have been excluded. The court below will observe this, should there be another conviction.

The judgment is reversed and the cause remanded.

Reversed and remanded.