Appellant was convicted of an assault with intent to murder, and his punishment assessed at six years confinement in the penitentiary.
Appellant made a motion for continuance on account of the absence of O.R. McCoy and Jim White. The diligence used to procure the witness McCoy was sufficient. We do not regard the diligence as to White sufficient, nor was his testimony material. However, as shown *Page 513 by the application for continuance, the testimony of McCoy was material; that is, the State's case depended alone on circumstantial evidence. Appellant's defense was an alibi. He lived some three or four miles from the place where the shooting occurred. Both of the State's witnesses who speak as to time place this at night, between 8 and 9 o'clock. Minnie Freeman (prosecutrix) states: "I was shot on the night of the 9th of August, 1900, at my father's house, and in the yard that surrounds the house." Mrs. J.O. Freeman states: "I was at home the night that Minnie was shot. It happened about 8 o'clock." These were the only two witnesses present at the time of the shooting, and neither of them identifies the defendant as the party. The application for continuance alleged "that the absent witness, McCoy, would testify that he was at defendant's house, in Hood County, Texas, on the evening of August 9, 1900 (the evening or night that Minnie Freeman was shot), from 6 o'clock in the evening until 9 o'clock in the night of said day, and that defendant was at home, three and one-half miles from the place where Miss Minnie Freeman was shot, from the hour of 6 o'clock p.m. until 9 o'clock p.m. of said evening, and that witness left defendant at his home at 9 o'clock on said night." This application was overruled. In connection with the motion for new trial on the ground of erroneously overruling the application for continuance, appellant appended the affidavit of this witness, McCoy, who swore "that he was a citizen of Parker County on the 20th of October, 1900, and before that time; that he was acquainted with Dock Baines, who resided in Hood County, Texas; that affiant was at Dock Baines' house, where Baines lived, on the evening of the 9th of August, 1900, from about the hour of 5 o'clock of said evening until the hour of 9 o'clock in said night, and that Dock Baines was at his (Baines') home all the time between the hours of 5 o'clock p.m. and 9 o'clock p.m. of said 9th day of August, 1900." In that connection is also appended the affidavit of Mrs. Baines, stating that there were some business matters between her husband and said McCoy, and that, of her knowledge, McCoy had visited her husband during the preceding March in relation to said business matters. The statement of facts shows, also, that on the night of the shooting Mrs. Baines, the wife of appellant, was absent from home. It will be seen from this statement that the testimony of McCoy as to the alibi directly and pertinently meets the State's case. The statement contained in the absent witness' affidavit is unequivocal, and covers the entire space of time fixed by the State in the commission of the offense, and, if McCoy's affidavit is untrue, he is undeniably guilty of perjury. It is insisted, however, that the State's case, though depending on circumstantial evidence, is exceedingly strong on the question of identity, and that in the face of this testimony the evidence of alibi is not probably true, and that it is competent and proper for this court to so declare; and a number of cases have been cited in which we have so held. Where an affidavit of the absent witness has been produced on motion *Page 514 for new trial, showing absolutely that he would testify to the facts set up in the application, we do not think any case can be found where we have assumed the prerogative of saying that the testimony was not probably true. To so hold, it seems to us, would be not only to usurp the functions of the jury, but to announce in advance that the absent witness had committed perjury. In our opinion, on the showing made, the judge should have granted the motion for new trial. Hull v. State (Texas Crim. App.), 47 S.W. Rep., 472.
We have examined the other errors assigned, but do not believe that any of them are well taken. On account of the action of the court in overruling the motion for continuance, and then refusing to grant a new trial on that ground, the judgment is reversed and the cause remanded.
Reversed and remanded.