Without critically analyzing and discussing the application for continuance made by appellant, we think the trial court well within his discretion in overruling same. We are in accord with the things said in the original opinion as to the lack of materiality of most of the testimony of appellant's wife, the absent witness. Tom Huff, a brother of deceased, who appears to have acted throughout in the role of a peace-maker, after separating his brother and appellant, and after appellant left the party in the night time apparently going toward his home some half mile distant, got in his car and went to appellant's home for the purpose of seeing him and talking the matter over. What he said to Mrs. Wiley, as set out in the application for continuance, appears in line with his efforts to prevent further difficulty. There appears nothing suggesting an acting together of Tom Huff with his brother at the time of the shooting. While the expected testimony of Mrs. Wiley as to the fact that her husband's head was bloody when he came home, would be competent, yet inasmuch as there is practically no dispute as to the condition of his head, we are unable to see the materiality of this testimony in so far as it might tend to bring about a different result upon another trial. Further, in regard to said application for continuance, we observe that when the application was presented setting out the illness of appellant's wife, the trial court sent two doctors out to her house with instructions to examine her and report. Upon their return and the making of their verbal report, the court issued an attachment for said witness, sent the sheriff out with same, had her brought to the county seat and taken to a hotel, and — being again advised by the doctors that she was able to attend court and testify — overruled the application for continuance.
The main contention in this motion appears to be that said wife having made affidavit that she would testify as set up in the application for continuance, and appellant having attached said affidavit to his motion for new trial, the trial court should have granted the motion, and that we erred in not so holding.
It is urged that under the terms of subdivision 6 of Art. 543, C. C. P., as construed by the decisions of this court, the question of the probable truth of the testimony of the absent witness was put beyond the pale of adverse decision by the trial court by the affidavit of the absent witness attached to the motion for new trial. Many authorities are cited in Mathason v. State, 89 Tex.Crim. Rep., 229 S.W. 548, and White v. State, 90 Tex.Crim. Rep., 236 S.W. 745, which seem to support this conclusion. It is also insisted that if the absent testimony, viewed in the light of that before the court below upon the trial, be material, then in obedience to the language of said subdivision 6 a new trial should have been granted. *Page 457
We must not lose sight of other parts of said statute, nor overlook what has been so often said heretofore by this court upon this subject. While it is said in said subdivision 6: "If an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted," it is also said elsewhere in the same subdivision: "The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right." In Browning v. State, 26 Texas App., 432, 9 S.W. 770, 771, after quoting what is first above quoted from said subdivision of the statute, this court proceeds ao analyze the absent testimony, and admitting its competence, we observed:
"If Mary Browning should disprove Crisp's testimony as to the matter, would that fact disprove the other inculpatory facts which are uncontradicted and which point with unerring certainty to the defendant's guilt? We think not.
"The rule is well settled that testimony which, if procured, would not tend to disprove the guilt of the accused is of too immaterial a nature to entitle him to a new trial based upon an application for a continuance to obtain it."
And our conclusion is announced as follows:
"It is not in every case, however (even), where the absent testimony is material and probably true that this court will revise the ruling of the trial judge (in refusing a new trial considered with reference to the application for a continuance). It is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction not merely that the defendant might probably have been prejudiced in his right by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted. Covey v. The State, 23 Texas App., 388,5 S.W. 283; Willison v. The State, 7 Texas App., 400.
In Boyett v. State, 26 Texas App., 704, 9 S.W. 275, 276, in his usual terse and forceful way, Judge Hurt says:
"Let us concede for the argument that the diligence used to procure the attendance of these witnesses was perfect, the question remains; was there error in overruling the application, and was there error in refusing a new trial because of this matter? We have no hesitation in saying there was none, because the facts, if true, and if adduced on the trial, would not have affected the result of the trial in the slightest manner; and, while competent, the bearing, force and effect, when considered in *Page 458 connection with the facts adduced on the trial, would have been as chaff before the wind." The italics are ours.
The rule thus referred to seems to have been held from the beginning. Fernandez v. State, 4 Texas App., 421; Peace v. State, 27 Texas App., 93, 10 S.W. 761; McFadden v. State, 28 Texas App., 243, 14 S.W. 128; Hammond v. State, 28 Texas App., 415, 13 S.W. 605; Abrigo v. State, 29 Texas App., 143,15 S.W. 408. In Stacy v. State, 77 Tex.Crim. Rep.,177 S.W. 114, 119, this court quotes approvingly the statement and citation of authorities laid down by Judge White in his Annotated Crim. Procedure, at page 415, as follows:
"The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance unless in connection with the other evidence adduced on the trial they are impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex.Crim. Rep. (30 S.W. 788); Gallagher v. State,34 Tex. Crim. 306 (30 S.W. 557); Easterwood v. State,34 Tex. Crim. 400 (31 S.W. 294); Sinclair v. State,34 Tex. Crim. 453 (30 S.W. 1070); Bluman v. State,33 Tex. Crim. 43 (21 S.W. 1027, 26 S.W. 75); Goldsmith v. State, 32 Tex.Crim. Rep. (22 S.W. 405); Hyden v. State, 31 Tex.Crim. Rep. (20 S.W. 764); Hammond v. State, 28 Texas App., 413 (13 S.W. 605); Pruitt v. State, 30 Tex. Crim. 156 (16 S.W. 773); Frizzell v. State, 30 Tex. Crim. 42 (16 S.W. 75); Ellis v. State, 30 Tex. Crim. 601 (18 S.W. 139); Browning v. State, 26 Texas App., 432 (9 S.W. 770); Boyett v. State, 26 Texas App., 689 (9 S.W. 275); Covey v. State, 23 Texas App., 388 (5 S.W. 283); Self v. State, 28 Texas App., 398 (13 S.W. 602); Phelps v. State, 15 Texas App., 45."
This is the same rule adhered to by the court as now constituted in White v. State, 90 Tex.Crim. Rep.,236 S.W. 745. We might observe that if the trial court was compelled to grant a new trial because he had overruled an application for continuance based on the absence of witnesses whose testimony would be merely competent or admissible, or material to some collateral issue, which fact appeared upon the trial of the case, this would be laying down a rule the effect of which would be to materially hinder the due administration of justice. We are of opinion that the rule laid down in this regard by our predecessors should be adhered to by us, and that when an application for continuance is overruled, and the fact of such refusal is made a part of the ground of the motion for new trial, that such new trial should not be granted unless this court reviewing the case within its appellate jurisdiction, is satisfied *Page 459 that the action of the trial court in the overruling of such motion for new trial amounted to an abuse of his discretion in determining in the first instance that had the absent testimony been present on the trial, no different result would have been likely.
We are not quite able to see the force of the exception leveled at paragraph ten of the court's charge, same being on the issue of self-defense. In substance said paragraph told the jury that if Drew Wiley killed deceased, but if the jury believed from the evidence, or had a reasonable doubt of the fact, that deceased had made an attack on Drew Wiley or appellant, or if the jury believed that it reasonably appeared from the standpoint of either Drew Wiley or appellant that deceased was about to make an attack on either of them, which from the manner and character of it, or the relative strength of the parties, or their knowledge or that of either of them of the character and disposition of the deceased, caused them or either of them to have a reasonable expectation or fear of death or serious bodily injury, and that under such circumstances Drew Wiley killed deceased, or under such circumstances appellant advised or encouraged by words Drew Wiley to do such killing, the jury should acquit. The testimony quoted in appellant's motion for rehearing as given by himself and his daughter, tended pertinently to support the theory that at the time deceased was killed he had leveled his pistol at Drew Wiley and had accompanied this act by a threat. This would seem to show an attack already made, or at least one about to be made, and this would be covered by the charge excepted to.
We think the motion for rehearing should be overruled, and it is accordingly so ordered.
Overruled.