We said in our opinion that "When the facts as stated in the application for continuance are considered in connection with the evidence adduced and do not appear to be probably true, a new trial should not be granted." This statement is vigorously assailed as denying to one accused of crime the right *Page 192 to have the jury determine the probable truth of the alleged absent testimony. We quote from sub. 6, Art. 608, C. C. P.:
"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; provided, that should 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, and the cause continued for the term, or postponed to a future day of the same term."
It is the trial judge who must grant or refuse the new trial, hence with him necessarily must rest the judicial discretion of determining whether the alleged absent testimony is probably true in view of all other evidence heard during the trial. In Gaines v. State, 67 Tex.Crim. Rep., 150 S.W. 199, this court said:
"A continuance is not granted as a matter of right since the amendment of subdivision 6 of Article 597 (now 608) of the Code of Criminal Procedure, but is addressed to the sound discretion of the court called to pass on the same, and it has been held by this court that it will not revise or review the judgment of the trial court refusing a continuance unless it is made to appear by the evidence adduced that the proposed absent testimony was probably true."
To the same effect see Grayson v. State, 91 Tex. Crim. 137,236 S.W. 1110; Bedford v. State, 91 Tex.Crim. Rep.,238 S.W. 224; Weaver v. State, 91 Tex.Crim. Rep.,240 S.W. 543; Evans v. State, 91 Tex.Crim. Rep.,240 S.W. 916. Many other cases are collated under Sec. 305, Branch's Annotated P. C. If the absent witness makes affidavit that if present he would have sworn to the facts stated in the application for continuance, and such affidavit be attached to the motion for new trial, then discretion of the trial judge to determine the probable truth of such testimony does not operate. White v. State, 90 Tex.Crim. Rep., 236 S.W. 745, and many cases cited. For further collation of authorities upon the point see Sec. 336, Branch's Annotated P. C. No affidavits of the absent witnesses were attached to the motion for new trial in the present case, and the rule first announced applies. Wt have again reviewed the evidence in the record. In the light of its positive character we discern no error on the part of the trial judge in refusing a new trial the request for which was based upon his action in denying the continuance.
The motion is overruled.
Overruled. *Page 193