Appellant makes an appealing motion for rehearing, courteously insisting that we were in error in a number of matters contained in the opinion, each of which has been reviewed, and in none of them do we think reversible error appears except in the following.
This case was called for trial August 24, 1933. Appellant made his first application for continuance because of the absence of eight witnesses. The continuance was refused, to which a bill of exceptions was taken. In qualifying this bill the court certified that all said witnesses were present and testified at a former trial had on July 18th and 19th, 1933, which resulted in a hung jury. No attack was made on appellant's diligence. It appears to be also certified in said bill that the continuance was refused because the State's attorney filed a written admission that the absent witnesses would swear that appellant was not drunk on the occasion in question. We need not cite authorities to make plain the fact that such admission will not suffice to defeat a continuance. All the cases hold that to have such effect the admission should not only grant that the absent witnesses would swear as stated, but also that such testimony would be true.
On the point that the refusal to continue was not a proper exercise of the discretion of the trial court, and that the lack of the absent testimony probably harmed appellant, — we observe *Page 150 that the certificate of the court to the fact that when said witnesses were present and gave testimony upon the first trial, there was no conviction but a hung jury, — is at least persuasive of the helpful effect to appellant of the presence and testimony of these witnesses.
Our attention is also attracted to the fact that of the nine witnesses for the State who affirmed appellant's drunkenness on the night in question, six of them were officially related, one being the sheriff, another his wife, another a deputy sheriff, another the sheriff's brother, who was constable, another being the justice of the peace, and still another a night-watchman. It is here suggested that because appellant had gotten the job of playing at a dance hall on said occasion, for which said constable was also an applicant, this caused or contributed to the claim by the constable and his friends that appellant was drunk that night. Be that as it may, we are not willing to hold that because twenty witnesses for the defense affirmed on this trial that appellant was not drunk on said occasion, it would follow that the presence of eight others who would swear likewise, — would not have probably changed the result, and that for such reason a first application for continuance was properly refused.
Believing upon more mature consideration that we were in error in holding the refusal of the continuance not such matter as should have caused a reversal, the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.