Conviction is for assault to murder Miss Ethel Sprott.
It is a companion case to No. 6218, 231 S.W. Rep., 759, against the same appellant wherein he was convicted for an assault with intent to murder his wife. The transaction detailed in that case discloses the facts in this one.
The defense was insanity. The first application for a continuance on account of the absence of the witness Parrott was presented and overruled. That the diligence appears sufficient was not controverted. The evidence of the absent witness bore upon the issue of insanity, which issue was strongly supported by facts and circumstances as well as the opinion of non-expert witnesses. *Page 396
In the companion case, we declined to reverse on account of the absence of the same testimony, but in that case the record excluded any legal diligence to secure his attendance. In the case before us, that the diligence required had been exercised was not contested. The testimony was manifestly material to the only defensive issue presented. We find no basis for a conclusion that the testimony of the absent witness was not probably true. That is to say, there is no sufficient reason for assuming that he would not have recited the facts set up in the application and given his opinion based thereon that the appellant was, at times, insane to a degree rendering him incapable of comprehending the distinction between right and wrong. The other evidence in the case rather discredit the idea that the witness would not have given the testimony. We think it cannot be said, as a matter of law, that it would have had no effect upon the verdict. Upon the record, we are of the opinion that it was not within the discretion of the learned trial judge to overrule the application and that in the light of the facts developed, a new trial should have been awarded. Roberts v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 627; Barlow v. State, 61 Tex.Crim. Rep., 133 S.W. Rep., 1050; Webb v. State, 5 Texas Crim. App., 596.
Upon the other points presented the record is, in every essential sense, like that in the companion case, and for the reason therein stated are, in our opinion, without merit.
Upon the ground indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.