At a former day of this term an opinion on rehearing was delivered. It was based on an affidavit which had been transmitted to this court in a supplemental transcript, with a certificate from the clerk that the affidavit was a part of the proceedings below and was inadvertently omitted from the original transcript.
Our attention has been called to the fact that such affidavit is in no way authenticated by the trial judge; and that it does not appear from the record that such affidavit was ever introduced in evidence upon the hearing of the motion for new trial, or was in fact considered by the court. This being true the same should not have been considered by us, and the opinion based upon it is withdrawn, and this substituted therefor.
It is insisted that we were wrong in holding no reversible error to have been committed in refusing appellant's application for continuance. *Page 142 In so far as the application stated that she expected to prove communicated threats by the three absent witnesses, we believe the original opinion sufficiently discussed and properly disposed of the question on that issue. It was claimed that Henry Love, if present, would not only testify to threats, but would also testify that he was present at the time of the difficulty, and saw deceased attack appellant with a butcher knife.
So insistent has appellant been in urging that we fell into error in upholding the action of the trial judge in overruling the motion for new trial based upon his refusal of continuance for the witness Love, that we have again carefully examined the evidence, because it must be from the whole case that the trial judge and this court must view the matter when presented on motion for new trial.
A part of sub-division 6, Art. 608, Vernon's C.C.P., relating to applications for continuance, is as follows: "___ the truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right; provided, that should an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted, and the cause continued for the term, or postponed to a future day of the same term."
The discretion lodged in the trial judge is to be exercised not in an arbitrary manner, but the alleged absent testimony is to be appraised by him in a fair and reasonable way in the light of the facts developed during the trial. Tested by that rule, what are the facts, undisputed save by appellant herself? She says in her application that Love was present at the difficulty, and would swear that deceased attacked appellant with a butcher knife. A butcher knife is a weapon not easily concealed, and readily discernible when in use. Not one of the many eyewitnesses claim to have seen a butcher knife in deceased's hands. Some of them say if she had one they failed to see it, and others swear positively that she did not have it. While the evidence shows that at former times the deceased had made violent threats against appellant, yet on the occasion of the homicide the testimony leaves no doubt that the latter was the aggressor. She had been put out of the house a short time before the killing, but came back and again accosted deceased, telling her in substance that if she opened her mouth she would kill her, and upon deceased telling her to "go on, that nobody said anything about you," appellant immediately stabbed her. All of the eyewitnesses were asked to give the names of those present in the restaurant at the time of the killing. There is little variance in the names given; but no witness, not even appellant herself, gives Love's name as one *Page 143 of those present. In addition to this one witness testified that he left Love in the kitchen when he (witness) went in the restaurant, and that Love did not come out of the kitchen until after the killing.
Viewing the case as a whole, we think the trial judge was well within his rights in concluding that with all reasonable certainty Love was not present when the homicide took place, and that his proposed testimony as set out in the application for continuance was not probably true.
The motion for rehearing is overruled.
Overruled.