At the last term of this court this case was affirmed. A careful examination of appellant's motion for rehearing has served to convince us that we were in error in failing to hold that appellant was entitled to a new trial on account of the court's action in overruling his application for a continuance.
We adhere to the holding in our former opinion to the effect that the motion for a continuance was rather vague in *Page 150 that it failed to set out in detail the facts that appellant expected to prove by the absent witness. Our attention, however, has been called by appellant to the fact that on the motion for a new trial the appellant produced the affidavit of the absent witness and in this affidavit the absent witness not only avers his willingness to testify that the defendant was not in Bell County but was in Lubbock County at the time the offense was alleged to have been committed, but he further avers in his affidavit that he is willing to testify that the appellant was a resident of Lubbock County, Texas, during the latter part of the year 1922, and the major part of 1923, any part of the months of January and February, 1923, but that he was continuously in Lubbock County, some four hundred miles distant from Bell County, during said two months, and that the witness was in daily contact with and saw the appellant daily during said months of January and February, 1923.
It seems to be well settled in this State that if on motion for new trial the affidavit of the absent witness is produced showing that he would testify as stated in the application for a continuance, then the court is not the judge of the probable truth of the absent witness' testimony.
In the instant case, as above indicated, the affidavit of the absent witness was attached to the motion for a new trial, and the same shows that he will testify definitely and positively to facts that are certain and pertinent, showing a complete alibi for the appellant at the very time that the prosecuting witness testifies that the offense of rape was committed. Under this condition of the record, we have no option but to grant the motion for rehearing and to reverse and remand the case. Sec. 334 Branch's Ann. P. C.; Garold v. State, 11 Tex. Cr. App. 219; Jetton v. State, 17 Tex. Cr. App. 311; Leroy v. State,75 S.W. 505; Bryant v. State, 271 S.W. 610; Derrick v. State,272 S.W. 458.
Appellant's motion for rehearing is granted, and the judgment of the trial court is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 151