Smith v. State

White, Presiding Judge.

In this case the indictment was presented and filed on the 20th of Movember. On the 21st defendant-procured the issuance of process for his witnesses, and amongst them an attachment for the witness Tevis, which was returned not executed, on the 28th, the day on which the case was called for trial. When the case was called defendant applied for a postponement to a future day of the term, in order that he might secure the attendance of his absent witness, Tevis, who, it was alleged, was on that day at Columbus, sick and unable to attend; and a telegram. from said witness was made an exhibit to the motion showing that he was sick at Columbus, which is in the adjoining county to Fayette. It was nearly a month after this application for a postponement was made and overruled by the court, before the court was adjourned for the term, on, to wit, the 26th day of December, 1885.

We are of opinion defendant was entitled to the postponement when the evidence sought from the absent witness is considered-with the evidence adduced at the trial. Due diligence to get the witness was shown; the testimony was material, and it is not lacking in probability as to truth when taken in connection with other evidence in the case. (Miles v. The State, 14 Texas Ct. App., 436; McDow v. The State, 10 Texas Ct. App., 98; Ninnon v. The State, 17 Texas Ct. App., 650.) Having refused the application in the first instance erroneously, it was additional error to overrule the motion for a new trial based upon this ground.

[Opinion delivered January 9, 1886.]

The judgment is reversed and the cause remanded.

■Reversed, and remanded.