Appellant was convicted of murder and given ten years in the penitentiary.
When the case was called for trial a second application for continuance was overruled. At the previous term the first application had been overruled, and on the trial appellant was convicted. On appeal that conviction was set aside and reversal occurred. The application was made on account of the absence of Albert Cram, who was alleged to reside in Jefferson County. Appellant issued process for him, which seems not to have been returned. The State issued process for the same witness. The return of the sheriff shows it was served upon Albert Cram. Albert Cram was a very material witness, and his testimony would flatly contradict the State's case on most material facts connected with the homicide. The diligence was sufficient for the reason it shows the witness was summoned in ample time to obtain his presence at the trial. If witness misled appellant as to what his testimony would be diligence is ample. Branch's Crim. Law, sec. 256; Richardson v. State, 57 Tex.Crim. Rep.; Adams v. State, 10 Texas Crim. App., 677; Rankin v. State, 57 Tex. Crim. 132. Attachment issued also for the witness when he failed to appear. The bill of exceptions shows after witness was served Mr. Adams, one of appellant's counsel, went to Port Arthur, in Jefferson County, where the witness was summoned and had a conversation with him. In this conversation the witness told Mr. Adams that his name was not Albert Cram but Orrin Cram; that he was a brother of Albert Cram, and he did not know the whereabouts of Albert, his brother. It is also shown that during the investigation of this continuance, from the standpoint of the motion for new trial, that while Mr. Adams was in Jefferson County he was introduced to a Mr. Cram as Albert Cram, and that he went to Port Arthur in part to see Cram to know what he would testify as to the facts of the case. When Cram told him his name was not Albert but that it was Orrin, he then asked Mr. Adams whether or not he should attend court at Jasper. Mr. Adams answered if he *Page 415 was not Albert Cram he need not go, but if he was Albert Cram he should go. It is also shown that when the application was presented, the court asked the question generally if anybody had seen Albert Cram. Receiving no reply the court then turned to Mr. Adams and asked him if he had seen Mr. Albert Cram lately, and was informed by Mr. Adams that he had not, whereupon the court said from all these facts he would hold that the witness had never been served, but that a brother of Albert Cram, towit: Orrin Cram, had been served instead of Albert Cram; that after having notice from the officers at the last term of the District Court six months ago that Albert Cram was then in Morgan City, Louisiana, no attempt was made to take his depositions. The court was informed by Mr. Adams after this case was tried, when the defendant was given time in which to prepare his motion for a continuance, that in consultation he, Mr. Adams, asked the other attorneys what he must say should the court ask him if he had seen Albert Cram, and that they said to him, "Well, have you seen Albert Cram?" and was informed by Mr. Adams that he had not, and then they said, "Then tell the court you have not seen him," and that he did as they had agreed that they should. It is further shown that when the application for continuance was overruled the court entered a fine against Albert Cram and a judgment nisi ordering process to issue. The amount of the judgment nisi was $500. Now the court finds as follows: "From all the facts, the court holds that the witness Albert Cram was never served, but that a brother of Albert Cram, towit: Orrin Cram, was served as the witness Albert Cram; that after having notice from the officer, at the last term of the District Court six months ago, that Albert Cram was then in Morgan City, Louisiana, no attempt was made to take his depositions. The court was also informed by Mr. J.T. Adams after this case was tried, `that when the defendant in this case was given time in which to prepare his motion for a continuance, that in consultation he, Mr. Adams, asked the other attorneys what he must say should the court ask him if he had seen Albert Cram, and that they said to him, "Well, have you seen Albert Cram?" and "I said no," and then they said, "Well, then tell the court you have not seen him," and "that he did as they had agreed that he should."'" The witnesses for the State, Smith and Schmizer, testified when Mr. Adams came to Port Arthur he asked them to locate the witness Albert Cram so he could talk with him. They finally did so, and in the evening they introduced the man to him as Albert Cram with whom Adams had the conversation. In this conversation Adams was informed by Cram that his name was not Albert, but Orrin Cram. Cram asked Mr. Adams then if he should attend court. He said, "If you are not Albert Cram there is no necessity for your going," or "you need not go," or substantially this, but "If you are Albert Cram you had better attend court." He was a stranger to Adams; the first time they had ever seen each other. Now under this condition of the record the court finds that Albert Cram was not served, and yet enters a judgment nisi against him fining him $500 for non-attendance upon the court, and *Page 416 yet all the process was served upon him as Albert Cram, and the officers indicate in their statements that he was Albert Cram. The court seems to find with Mr. Adams, that he was not Albert Cram, but Orrin Cram, and proceeds to fine Albert Cram $500 for non-attendance on the court for process served upon Orrin Cram, and for this reason he says the diligence is not sufficient. I can not agree with the trial judge. Appellant did not have to resort to depositions under the circumstances of this case. When the motion for new trial presented all these matters, the court should have granted a new trial. The witness was a most material witness under the showing made, and if his testimony is true, it went directly to the very substance of the State's case. If as the officers say this was Albert Cram and they served him a few days before court, the diligence was sufficient whether it was served for the defendant or the State. Diligence is not always the final test. Fair trial being guaranteed by the Constitution, it is far more important that material testimony be had. No accused citizen ought to be rendered infamous on a test of strictest technical diligence. Having been served for the State, defendant had a right to take advantage of such service. He himself had issued process, but for some unexplained reason it had not been returned by the officer. Subsequently that issued by the State was served and return made. Both parties believed he was Albert Cram, issued process for him, and the return shows it was Albert Cram. The officers believed he was Albert Cram, and their return on process as well as their testimony so indicates. The court did not find and would not have been justified in finding that Mr. Adams kept the witness away or was instrumental in keeping him away. The evidence shows to the contrary. Under the circumstances of this case I am of opinion the court erred, and the judgment should be reversed and remanded. I can not concur in this affirmance, and enter my dissent.