Conviction for possessing intoxicating liquor for purposes of sale; punishment, eighteen months in the penitentiary.
The original opinion heretofore handed down in this case is withdrawn, and the following substituted.
We think the indictment sufficient. It charged appellant with possession for the purpose of sale of spirituous, etc. liquor. The proof was of possession of whisky.
The main question before us is the court's refusal to continue the case and thereby substantially depriving appellant of counsel. After his indictment appellant employed an attorney. Thereafter the case came up for trial at the August term of 1934 of the court below, it being called for such trial on Monday, September 17th. At said time it was made known to the court that appellant's attorney, who had been sick with intestinal flu, had suffered a relapse, and was not able to appear and represent appellant. This fact was attested by the certificate of a physician, and the affidavit of his attorney. The case was reset for September 20th, and the trial court informed appellant that it would be better for him to see about getting another attorney. On September 20th an application for continuance was presented to the court below, in which it was made to appear that appellant had consulted three attorneys living in Tulia, the county seat of Swisher county, where the case was pending, and tried to get them to represent him, but each for reasons declined. These were the only attorneys resident in said town, save one who was absent and could not be reached. In addition, — and for further excuse *Page 533 for not having an attorney, appellant said in his application that he had paid all the funds he possessed to the attorney whom he had employed and was without funds to hire another had one been available. The application to continue was accompanied by the certificate of the doctor and the affidavit of the attorney, stating, in substance, that said attorney was sick and unable to appear. This fact seems in no way controverted.
We regard the judge before whom this case was tried as one of the most careful, able and considerate of our trial courts, but are not quite able to agree with him in his conclusion that the application for continuance should not have been granted.
Our Constitution and Bill of Rights guarantees to every citizen the right to be heard by himself or counsel, or both, and the courts have apparently fried jealously to safeguard the guarantee. Roe v. State, 25 Tex App., 66; Daugherty v. State,33 Tex. Crim. 173; Kuehn v. State, 47 Tex.Crim. Rep.. In Spangler v. State, 42 Tex.Crim. Rep., we said the right to be heard by counsel is a sacred right, and when denied will constitute cause for reversal. The Kuehn case, supra, is somewhat like the case at bar. In same the lawyer hired by the accused was sick when the case was called; the accused made effort to get other attorneys and failed. He had to go to trial without a lawyer. Citing the Daugherty case, supra, this court held that the refusal to continue in effect deprived the accused of counsel, and the case was reversed on that ground alone. In Johnson v. State, 84 Tex.Crim. Rep., in differentiating that case on its facts, Judge Davidson referred to the Kuehn case, supra, but said, referring to the case before him: "Appellant was not deprived of his counsel by reason of sickness, or any matter that could not be overcome." See also Patterson v. State, 60 S.W. Rep., 560; Walker v. State, 32 Tex. Crim. 179; McLean v. State, 32 Tex.Crim. Rep.; Jackson v. State, 55 Tex.Crim. Rep.. The case of Fuller v. State,117 Tex. Crim. 558, readily distinguishes itself on the facts from this case and those cited.
While there was no showing of any affirmative facts establishing a defense in this case, we regard this proposition, in a situation like this, as aside from the question. Appellant did not get the minimum penalty. He also had an application for suspended sentence. Appellant did not know how to present his case, or set up the fact that he had any affirmative defense. He is not and was not a lawyer. Even if guilty, he is entitled to be convicted according to the law and the Constitution. *Page 534
The judgment will be reversed and the cause remanded.
Reversed and remanded.
ON SECOND MOTION FOR REHEARING.