We think the court erred in refusing the defendant a new trial. His application for a continuance was a first one, and was in compliance with the statute both in form, and substance. It showed legal diligence to obtain the absent testimony, and the materiality of such testimony. "Viewed in connection with the evidence adduced on the trial, the absent *496testimony would be material to the defendant, as it would tend strongly to establish for him a valid defense, and there-being nothing in the testimony adduced on the trial to contradict or render it improbable, we must hold that the facts set. forth in the application for a continuance are probably true. (Code Crim. Proc., art. 560, sub div. 6; Willson’s Crim. Stat., sec. 2186.)
Opinion delivered April 27, 1889.The judgment is reversed and the cause is remanded.
Reversed and remanded.