In that part of our opinion in which we held it not error to have refused the application for continuance made because of the absence of Mrs. Ardell Thomas and her mother, we have concluded upon mature reflection that we were in error. *Page 174
There was no question raised as to the diligence used to secure the presence of said witnesses, nor of the fact that sufficient reasons were shown why they could not be present at the trial. Succintly stated, it was set up that if present these witnesses would give testimony which, if believed, would show a complete alibi for Ardell Thomas and Pete Thomas. The affidavits of said witnesses were attached to the motion for new trial, and in same they avowed that had they been present they would have testified to such facts.
We must bear in mind that in the development of the res gestae of the case against this appellant the State proved by its witnesses, — the officers who raided a still in a thicket near Mineola, — that as they approached same they saw appellant, Ardell Thomas and Pete Thomas at the still. All of said parties escaped in a car before the officers got quite up to them. Appellant testified that he was not at the still, but was at another and different place, in which proposition he was corroborated by a number of witnesses.
Referring to the absent testimony, it thus appears that two of the men identified by the officers as being present with appellant at the time and place of the commission of the offense, would be shown by such absent testimony to be not at the still at such time, but that they were in fact at a different place. This would seriously combat the State's case as sworn to by its witnesses, and might serve to cast doubt on the ability of the State witnesses to recognize appellant as one of those present at said time. In short, in the language of our opinions, the absent testimony was more than impeaching. It would tend to disprove the substance of the State's case. Tull v. State, 55 S.W. Rep. 61; Stewart v. State, 52 Tex. Crim. 100; Cockrell v. State, 60 Tex.Crim. Rep.; Eppison v. State, 82 Tex.Crim. Rep.; Cottrell v. State,91 Tex. Crim. 134; Stubblefield v. State, 94 Tex.Crim. Rep.; Lusty v. State, 97 Tex.Crim. Rep.. These cases will be found upon examination to illustrate the principle deemed by us to have application to the question under discussion.
Being now of opinion that the trial court erred in refusing the continuance, and in overruling the motion for new trial based thereon, the appellant's motion for rehearing will be granted, the judgment of affirmance will be set aside, and the judgment of the lower court will be reversed and the cause remanded.
Reversed and remanded. *Page 175