In its motion for rehearing the state sets out the evidence given by Fred Clark upon a hearing of the motion for new trial, and relies upon such testimony in connection with the other matters discussed in the original opinion as justifying the trial court in determining that if Walling, the absent witness, testified as expected his evidence would not be true. It is insisted that the court's finding upon the matter should not be disturbed. No affidavit of Walling was attached to the motion. Clark was night watchman in the town of Amherst. Upon the hearing of the motion for new trial he testified that on the night of the robbery he saw the witness Walling every fifteen or twenty minutes until after the robbery occurred, and knew that another party had Walling's car which was not returned until after the report of the robbery had reached town. It is clear from Clark's evidence that he was of opinion Walling never left town either before or after the robbery. In fact he says "I don't think he went I don't think he went out there at all." That Clark was mistaken to some extent is quite apparent from the testimony of the state witness May. After the robbery May came to town to see about the extent of the injuries to Vivian. He started back to the scene of the dance after his car and met it coming towards town. It was occupied by appellant. Ownes and the young lady who had gone to the dance with Vivian, May and appellant. May says that Walling drove up and the young lady got in his car and was brought back to town by Walling. Kuykendall testified on the trial that he and Walling only remained at the dance a short time, then came on back to town, and after hearing of the robbery he and Walling started back and met several cars in one of which was the young lady and appellant. He then relates, as does May, the incident of the young lady getting in Walling's car and returning to town with them. It is therefore very certain that Clark was not advised as to Walling's movements after the robbery became known.
Art. 757 Cow. C. P. reads:
"The state may take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case the judge shall hear evidence, by affidavit or otherwise, and determine the issue." *Page 84
Some cases may be found holding that while the state can only controvert the question of diligence upon an application for continuance, yet if the application be overruled and complaint thereof is brought forward in a motion for new trial the state may then — in the absence of an affidavit of the absent witness attached to the motion asserting that he would give the claimed testimony — inquire into the probable truth of the proposed testimony of the absent witness. Attaway v. State,31 Tex. Crim. 475, 20 S.W. 925; Richardson v. State, 28 Tex. Crim. 216; Steel v. State, 55 Tex.Crim. R.; Woods v. State,83 Tex. Crim. 332. Other cases are referred to in those cited. As was said by Judge Ramsey in Steel's case (supra), similar questions have "been before this court not infrequently, and usually we have held adversely to the state; but as will be seen by an inspection of the opinion in the several cases, every decision has to some extent been based upon the particular facts of the case." The reason for such holdings being adverse to the state in most of the cases may be accounted for by the fact that the law has wisely vested in the jury the right to determine the credibility of witnesses and to settle conflicts in testimony, and the courts are naturally averse to depriving the jury of the right so vested. Upon a motion for new trial the probable truth of the proposed evidence of an absent witness — whose affidavit is not attached — is to be determined from the information then properly brought before the trial judge in connection with all the evidence which had been produced upon the trial. Considering the present case in its entirety, we are impressed with the view that the movements of the various actors and witnesses are so confusing and the testimony so in conflict that a jury should not be deprived of an opportunity of passing upon appellant's case in the light of Walling's testimony if it can be obtained.
The state's motion for rehearing is overruled.
Overruled.