I. "In all essentials, the defendant’s application for a continuance complies strictly with the requirements of the statute. It cannot be questioned that the testimony of the absent witness (defendant’s wife) is material. It bears directly upon the vital issue in the case. Upon this issue the evidence was conflicting and apparently evenly balanced. It was therefore of the gravest importance to the defendant to be allowed to cast into his side of the scales this testimony. That the testimony is merely cumulative is not an objection that can be urged on a first application for a continuance. “The defendant has the right to prove a material fact by any number of witnesses, within the bounds of reason.” (Wilson v. The State, 18 Texas Ct. App., 576.) Dor can it be said, in view of the evidence in the case, that the testimony of this witness is not probably true. It is supported by the testimony of some of the witnesses who testified on the trial, and controverted by others. (Harris v. The State, 18 Texas Ct. App., 287; Miller v. The State, Id., 232.)
II. We know of no authority which would compel the defendant to go with the court and jury from the court-house to where the absent witness was at the time, that her testimony might be taken. Under the law, the trial must be had at the court-house at the county site of the county. It was there, and there only, that *13the case must be heard and determined. If the defendant could be required to go one-half a mile with the court and jury in order to have the benefit of the testimony of an absent witness, he could be required to go one, two or five miles. We. cannot sanction such a practice. All the proceedings in the trial should be conducted at the court-house, the place designated by law for the trial of causes.
If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if- her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. But that is not the question before us. In this case the defendant’s application for a continuance was refused, one of the grounds of the refusal being that he declined to accept the proposition of the court to go wTith the jury to the place W’here the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance.
We are of the opinion that the court erred in refusing the continuance, and in refusing to grant the defendant a new trial; and for these errors the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered October 14, 1885.]