The case was tried on the 25th of August, 1924. The record discloses that the appellant was notified to dip his cattle at a certain vat between 8:00 A. M. and 12:00 o'clock Noon, and the State contends that he failed to comply with said notice and to dip said cattle. The appellant testified that he owned only a cow and calf; that Tom Henry Love was milching the cow and keeping the calf and that he, appellant, did not know whether or not they were dipped, but that he did not dip them himself.
The record discloses that appellant was not represented in the trial by counsel, and that after conviction he employed counsel who prepared his motion for new trial and perfected the appeal. The record further discloses that complaint had been filed against him for failure to dip said cattle and on the 22nd day of August about four o'clock in the afternoon he was arrested and that from said time up to the day of the trial, August 25, 1924, he had been attempting to learn from said Love whether or not the cow and calf were dipped and on the morning his case was called for trial, he made a verbal request of the court for a subpoena for said Love and that the trial be postponed until service could be had which was denied. It is also shown that he did not get in communication with said Love until the night of the 25th of August. The record further discloses that after the trial he obtained the affidavit of said Love and attached it to the motion for new trial showing that said cow and calf were dipped on the afternoon of said date on which he was notified to dip same.
After a careful consideration of said motion for rehearing and reviewing the entire record, we are of the opinion that we were in error in affirming this case. From the above it will be seen that the appellant only had about three days after capias was served on him within which to prepare for trial; and the record further discloses and shows that there was about one hundred cases on the docket, ninety five of which had precedence over his, which in the natural order of things he would have had the right to assume that it would take the court some time to reach his case, had same been called in its regular order, but for some cause undisclosed by the record, it appears that the appellant's case was called and acted upon and given precedence over said other cases. It is true that the record discloses the fact to be, that the appellant had made no demand for a subpoena of the witness Love until the morning the case was called for trial *Page 142 and if the diligence used was not such as required by the statute strictly construed, still in view of the affidavit attached to the motion for new trial showing that the cattle were dipped, we believe that the court should have granted said motion. Page v. State, 94 Tex.Crim. Rep., 251 S.W. 1086. Moore v. State, 94 Tex.Crim. Rep..
In the case of Simpson v. State, 263 S.W. 273, with reference to the trial court calling the docket, this court stated that the order of calling dockets is largely discretionary with the trial court and its action will not be disturbed unless injury is made apparent. We think the case, supra, is the settled law of this state and that unless there is an abuse of such discretion shown by the trial court, or injury resulting therefrom, this court would not be authorized or called upon to reverse a case called out of regular order. The record before us does not affirmatively show any abuse of discretion in this instance, but taken together with the request for the absent witness and the shortness of the time within which to prepare for trial and the materiality of the testimony of the said witness Love, as disclosed by the affidavit attached to the motion for new trial, we think that the new trial should have been granted. The record seems to disclose no intent to evade the law. McDonald v. State, 96 Tex.Crim. Rep..
We further notice from the record that the offense is charged to have been committed on the 26th of June. The complaint and jurat thereto attached is dated on the 13th day of June. This may be a clerical error; however, we call the attention of the prosecution to the same to deal with as the facts may authorize.
For the errors above complained of, the motion for rehearing is granted, the opinion of affirmance set aside and the judgment of the trial court is reversed and the 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.