In sustaining the action of the trial court in denying appellant's application for continuance we predicated our original opinion on the proposition that, admitting the testimony of the absent witness to be true, it was not in conflict with the state's testimony which went to establish appellant's guilt. In his motion for rehearing appellant very frankly admits the proposition stated as being correct and supported by the authorities cited, and that it is applicable to all the witnesses for whom continuance was sought except the witness Jess Sayers, but as to him the contention is urged that our opinion is erroneous. We believe his contention is correct. There was no lack of diligence in appellant's efforts to secure the attendance of Sayers. Process for him was timely issued and the sheriff's return shows that the witness was then out of the county, but did not give his location. The application for continuance was overruled on the 29th day of October. Judgment of conviction was obtained the same day also on that same date motion for new trial was overruled. Court adjourned on the fourth day thereafter. The testimony of the sheriff and his brother-in-law, Woods, is in direct conflict with that given by appellant. Does the proposed evidence of Sayers support appellant and bear on the conflicting issue? If it does then the court should have granted a new trial based upon the erroneous action in denying the Continuance. The sheriff says he saw appellant in Paducah on the day of the arrest and saw him leave town in his car about noon. No effort was made to arrest appellant while he was in town. The sheriff followed and overtook him about two miles from town. From this point the evidence *Page 40 of the officer and appellant is irreconcilable. The sheriff testified as follows:
"I told him I wanted to look his car over, and he said, 'Well, I don't have anything,' told me his business, what he was selling and showed me his sample book or order books, or something like that, and I asked him to let me look in the back end of the car, and he said it was locked, and I asked him if he had a key and he said he did not, and I talked on with him awhile and told him I would have to go ahead and pull it open, that I would have to look in it, and he wanted to know if some one had notified me to be on the lookout for him and I told him they had and he says, 'Well, I have some stuff in there,' and asked me about taking part of it and letting him keep part of it, or take all of it and let him go — let him pay a fine and let him go, so I told him I would not do that, and told him to get in his car and I got in mine and come back to town. He drove his car himself, and drove it into my garage out there, and he got out and took out the key and unlocked the back end and helped me unload the whisky. He drove the car into the garage there and then got in the car with me and come to town and fixed his bond and then he went back and unloaded the whiskey out of his car into mine. I think he had five kegs something like that. I think he said they held six gallons that they were five or six gallon kegs, I disremember now which. There were five of these kegs I think. They all contained whiskey, and were full. * * * At the time I first had the conversation out there at the defendant's car he told me he did not have anything in the car, and then he told me he did have, and told me what the stuff was — told me that it was whiskey. He said he was carrying this to Lubbock, and further stated that he had not sold any in this county."
The sheriff's testimony was unsupported by any witness except that of Mr. Woods, the sheriff's brother-in-law, testified that he saw appellant and the sheriff transferring five kegs from appellant's car to the sheriff's car, that he asked no questions and did not know whether the kegs contained whiskey, but that he smelled whiskey. The testimony of appellant with reference to the transaction follows:
"When I got to town that morning I parked my car just a block west of the square, west of the northwest corner of the square at a filling station. When I got out of the car there, I talked with Jess Sayers, who has also been summoned as a witness. I had a conversation there with Jess Sayers about selling him my automobile. He was in the market for a car at that time, and I tried to sell him *Page 41 mine. He got in the car, examined it inside and out, front and rear, and there was no intoxicating liquor of any kind or character, in any quantity in the car at that time. I saw Mr. Payne here in town that morning. I met him on the street just a little north of Ester Campbell's barber shop. He did not arrest me then, nor did he say anything about arresting me. After I saw him I started west — first north and then west to my car. There was nothing in the car then at all. There was no intoxicating liquor in the car. After I left the sheriff I don't suppose it was more than fifteen or twenty minutes before he stopped me out here on the road. Between the time I saw the sheriff here in town on the north side of the square and the time he stopped me out here on the road, there had been no liquor of any kind or character put in my car. When the sheriff drove up out there he said to consider myself under arrest and to get out of my car and I did — he pulled his gun, and I told him he did not need his gun. He said we will have to look you over and I told him alright help yourself, and he looked in the car, and says have you got a key for the back end, and I said yes, and he asked if it was locked and I said yes, and he says will you give me the key to it or will I have to search you for it. He did not search me for the key. I gave it to him. He did not have any search warrant, if he did he did not show any. He searched the car right there on the road. I let him have permission to do anything he wanted to. He demanded the key of me. He did not find anything in the car at that time. There was no intoxicating liquor of any kind or character in that car or in any quantity. He told me then to get back in my car and drive back to town. He told me to drive in his garage there at his house. I saw something in this garage. I saw some kegs there. I do not know whether they were empty or full, and I did not ask any questions. None of them come out of my car. I never helped unload any from my car. I left my car there in the garage and then he brought me on to town to make bond he said. I made a $750 bond, and said he was charging me with having liquor. There wasn't very much else said. I made the bond and he turned me loose just a few minutes after twelve o'clock. We went back up to his garage and I got in my car and left. * * * I say I had no whiskey or intoxicating liquor in my car at the time Mr. Payne arrested me. I did not tell Mr. Payne that I was on my way to Lubbock. It is not a fact in the conversation with him out there on the road that I told Mr. Payne that I did not have the key to the back end of the car. He took the key himself and unlocked it. I had the key in my pocket, but I never *Page 42 told him I didn't have it. It is not true that I further told him I had some stuff in there before he found it in the car, nor did I try to get him just to take part of it and let me keep part of it, nor did I tell him there that I had never sold any in this county. I did not tell him any of the things he has testified that I told him out there on the road. It is not a fact that I had five kegs of whiskey in my car and was headed for Lubbock like he says — I had no whiskey in my car, and had not had any in it at all."
In his application for continuance appellant makes the following averments:
"By the witness Jess Sayers, the defendant expects to prove that about fifteen minutes before this arrest and within about two miles of the scene of his arrest on the streets of Paducah defendant stated to said witness that he wanted to sell him his said car, an Essex roadster, that the said witness Jess Sayers looked over said car, and opened it up, and looked in the back of said car and examined said car carefully inside and out, but that he and the defendant failed to get together on the price, and the sale was not consummated, and that at said time and place defendant had no kind or quantity of whiskey in said car. In this connection the defendant will testify that immediately after he and Jess Sayers separated on the streets of Paducah, that defendant got in his car, an Essex Coupe, and started to visit his sister as above alleged, and never made any stop of any kind or character until he was arrested on the road by the sheriff some ten minutes thereafter, and that at no time on said date did he have in his possession or in his car, any kind or quantity of whiskey, or intoxicating liquors, and each of said above named absent witnesses will testify that at the time they inspected defendant's car on said occasion, he had no kind or quantity of any character of intoxicating liquor."
In his application for continuance appellant put the state upon notice and advised the court that the issue whether appellant had whiskey in his car would be sharply contested; that appellant would put his general reputation in issue, which he did and supported it by many witnesses, with no proof to the contrary.
Denial of first application for continuance for an absent witness whose presence has been sought by the use of proper diligence, is erroneous where the expected testimony would contradict the state's theory, or would support accused's contention. McLendon v. State, 101 Tex.Crim. R.,275 S.W. 1045; Long v. State, 102 Tex.Crim. R., 277 S.W. 139; King v. State, 103 Tex.Crim. R., 282 S.W. 220; Ray v. State,102 Tex. Crim. 421, 278 S.W. 197. For *Page 43 collation of other authorities see Branch's Ann. Tex. P. C., Sec. 335. Appellant was standing alone in his evidence against that of an officer of the county. Where continuance is sought to secure testimony to support the evidence of accused alone it should at least be as favorably regarded as where absent testimony is sought to support the testimony of a disinterested witness. Keller v. State, 36 Tex.Crim. R., 38 S.W. 44; Rucker v. State, 40 S.W. 991; Askew v. State, 47 Tex. Crim. 362,83 S.W. 707; Beard v. State, 55 Tex.Crim. R.,115 S.W. 592; Taylor v. State, 164 S.W. 844. The expected evidence of Sayers was the only testimony near enough in point of time and location to have been of any material support to appellant's own evidence. That it bore directly on the issue whether appellant's car did or did not contain whiskey at the time of his arrest seems obvious. Sayers was not a myth. The sheriff appears to have known him. What the result of the trial may have been had Sayers been present and given the testimony expected is open to speculation. We think the jury should not have been deprived of his evidence.
Believing we were in error in our former disposition of the case appellant's motion for rehearing is granted, the judgment of affirmance is set aside and the judgment is now reversed and the cause remanded.
Reversed and remanded.