On Motion for Rehearing.
In view of appellant’s earnest contention that the motion for new trial, based upon the action of the trial court in overruling the application for a continuance, should have been granted, we have carefully reviewed the matter.
The motion for continuance contained the allegation that Dameron, a witness named therein, would testify that Docia Alexander, the daughter of appellant with whom the incest is charged to have taken place, had asked the witness to procure poison that she-might administer it to her father. On the *295motion for new trial, appellant set up the fact that in attributing this statement to Doeia Alexander he was in error, but that the witness would give such testimony with reference to May, the sister of Docia Alexander. The record shows that May Alexander was an important witness corroborating Docia, and that appellant, by his conduct at the trial, endeavors to show through circumstances conspiracy between the two girls against him pursuant to which they gave damaging testimony. Appellant was tried March 22d. His motion for new trial was overruled April 4th, at which time the witness Dameron was present. He was not offered as a witness to verify the allegations in the motion for new trial, nor did any affidavit from him accompany it.
[7, 8] There are instances in which a motion for new trial should be granted because of absent testimony, though the application for a continuance to obtain it was properly overruled for want of diligence. Branch’s An. P. 'O. p. 188, § 319, and cases cited; Casinova v. State, 12 Tex. App. 554; Baxter v. State, 68 Tex. Cr. R. 136, 150 S. W. 912. These instances are those only in which from the evidence adduced on the trial the appellate court is impressed with the conviction, not merely that the appellant might have been prejudiced, but that it is reasonably probable that a more favorable verdict would have resulted. Covey v. State, 23 Tex. App. 391, 5 S. W. 283; Fuller v. State, 69 Tex. Cr. R. 534, 154 S. W. 1021; Branch’s An. P. C. p. 188, § 319, and cases cited; also, page 128, § 201. The failure to attach to the motion for new trial the supporting affidavit or evidence of the absent witness does not absolve the court from the duty of considering the motion, otherwise regular; but it does bear upon the question presented on appeal as to whether in refusing to grant the motion the trial court committed an error requiring reversal. Sharp v. State, 71 Tex. Cr. R. 640, 160 S. W. 369; Polk v. State, 60 Tex. Cr. R. 462, 132 S. W. 134; Davis v. State, 64 Tex. Cr. R. 8, 141 S. W. 264; McMillan v. State, 66 Tex. Cr. R. 288, 146 S. W. 1190; Browning v. State, 26 Tex. App. 432, 9 S. W. 770; Vernon’s C. C. P. p. 321, and cases cited; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92.
[9] When the application for a continuance was presented, it was urged on the proposition that the absent witness Dameron would, if present, testify to a conversation with the injured party, Docia Alexander. As presented on the motion for new trial, it appeared that the absent witness would not testify to the alleged statement made by Doeia Alexander, but that he would testify to a statement made by her sister, May Alexander. As arising on the motion for new trial, the testimony of the absent witness could not bear upon the abuse of discretion of the trial court in overruling the motion for a continuance, for the reason that the proposed testimony was not in the application for continuance at all. On the motion for new trial the testimony of the absent witness could be considered only as coming within the principle of newly discovered evidence. In other words, the motion for new trial was sought on the ground that Dameron, who was not present at the trial, would testify to a statement alleged to have been made by May Alexander, and that the fact that he would give such testimony had been learned since the trial. Applying the rules applicable to a motion for new trial on account of newly discovered evidence, it will be found that the decisions of this court are uniform to the effect that, if the motion is not supported by the affidavit or sworn statement of the absent witness, or the absence thereof satisfactorily accounted for, the action of the trial court in overruling the motion cannot be reviewed. Stallworth v. State, 66 Tex. Cr. R. 428, 147 S. W. 238; Burrell v. State, 62 Tex. Cr. R. 635, 138 S. W. 707; Polk v. State, 60 Tex. Cr. R. 462, 132 S. W. 134; Martin v. State, 57 Tex. Cr. R. 595,124 S. W. 681; Laird v. State, 69 Tex. Cr. R. 553, 155 S. W. 260; Williams v. State, 65 Tex. Cr. R. 193, 144 S. W. 622; Bracher v. State, 721 Tex. Cr. R. 198, 161 S. W. 124; West v. State, 2 Tex. App. 210; Blake v. State, 3 Tex. App. 581, and other cases cited in Vernon’s C. C. P. p. 806, note 13; also, under article 837, C. C. P. subdiv. 6, cases cited in Vernon’s Crim. Stats, vol. 2, pp. 778-785.
[10] One of the elements essential to require this court to review the action of the trial court in refusing a new trial on account of newly discovered evidence is that it must appear that the evidence is probably true. Gass v. State, 56 S. W. 76; Smith v. State, 28 Tex. App. 309, 12 S. W. 1104; Kirksey v. State, 61 Tex. Cr. R. 641,135 S. W. 577, and numerous cases cited in Vernon’s C. C. P. p. 786, note 11. The trial court in this case might have reached a conclusion on the motion for new trial favorable to the appellant if the motion had been supported by the affidavit or evidence of Dameron, and the failure to so support the motion when he was present in court probably influenced the judgment of the trial court in determining whether the evidence was probably true. We would not, in view of these authorities, be justified in disturbing the finding of the trial court, even though the proffered testimony be not classified as impeaching evidence.
[11] Another matter stressed in the motion for new trial is the contention that May Alexander was an accomplice and that her testimony should have been weighed by the jury under instructions by the court as accomplice testimony. This is based upon the proposition that May Alexander knew of the -crime and failed to disclose it. According to the rule applied in this court, she was not an accomplice. Noftsinger v. State, 7 Tex *296App. 324; Schakey v. State, 41 Tex. Cr. R. 255, 53 S. W. 878; Elizando v. State, 31 Tex. Cr. R. 243, 20 S. W. 560; Webb v. State, 60 S. W. 961; Floyd v. State, 29 Tex. Cr. R. 356; Smith v. State, 23 Tex. App. 364, 5 S. W. 219, 59 Am. Rep. 773; Rucker v. State, 7 Tex. App. 564.
In view of these authorities, we are constrained to overrule the motion for rehearing.