Opinion on Motion for Rehearing.
Willson, Judge.A re-argument of this case upon the motion for rehearing and a thorough consideration of the grounds of the motion have convinced us that the conviction should be set aside. As stated in the opinion of affirmance, the application for a continuance was not improperly refused, for the reason that it failed to show legal diligence to obtain the testimony of two absent witnesses, Cordway, Jr., and Sandoval. But the question 'with respect to the testimony of these absent witnesses was again presented for the consideration of the trial court on the defendant’s motion for a new trial, and upon this second presentation of the matter it was the duty of the court to grant a new trial, if, in view of the evidence which had been adduced on the trial, it appeared that the absent testimony was material and probably true, notwithstanding a failure to show strict legal diligence to obtain said absent testimony on the trial. (McAdams v. The State, 24 Texas Ct. App., 86; Jackson v. The State, 23 Texas Ct. App., 183; Covey v. The State, Id., 388.)
The evidence adduced upon the trial upon the issue of the falsity of the defendant’s statements, as alleged in the indictment, is not only conflicting, but the only positive evidence on the part of the State to establish such falsity was that given by the witness Monroe Toodles, whose general reputation for truth and veracity was proved to be bad by several witnesses. By the testimony of two absent witnesses, the defendant stated he could prove the truth of the alleged false statements; that , is, that the deceased Jackson, at the time he was shot and killed by Coy, did have a pistol in his hand. In view of the evidence adduced on the trial, and especially of the bad character of the witness Toodles, this absent testimony was certainly material, and was probably true. We are. convinced that, because the defendant was deprived of the absent testimony, injustice has probably been done him, and that upon this ground he should have been granted anew trial. We will therefore grant the *419motion for rehearing, set aside the conviction and remand the cause for another trial.
Opinion delivered May 9, 1888.With respect to the other grounds of the motion for rehearing, all of which are discussed and determined in the opinion of affirmance, we are still of opinion that our conclusions as stated in that opinion are correct.
Rehearing granted, and cause reversed and remanded.