White, Presiding Judge. It is true that appellant had obtained one continuance of his case at the September term, 1883, but that continuance was solely upon the ground of the sickness of his attorney.

In support of his motion for a new trial upon the ground that the court erred in overruling his application for a continuance, the affidavit of each of the absent witnesses for whom the continuance was sought is made an exhibit, and each of said witnesses swears that he, the witness, had been served with subpoena and had never disobeyed the subpoena before in this case; and they give the reasons why, in this instance, they failed to appear and testify to the facts to which they aver they would have testified if present.

As exhibIted in the record, we cannot say that’ the application for continuanee was lacking in diligence. If in fact any diligence was wanting, the State, either at the time the application was submitted or when again raised on the motion for new trial, could have controverted the same. (Code Crim. Proc., art. 564; Walker v. The State, 13 Texas Ct. App., 619.) Ho effort was made in this direction by the prosecution. There can be no question as to the materiality of the testimony as shown in the application, and we cannot say that it is not probably true.

Taking this testimony in connection with the fact that appellant’s identity and connection with the theft of the horses is proven by witnesses who had never known him, and who only saw the part}' with whom they identify him for but a short time, and it ,is apparent that the testimony of the absent witnesses to prove the alibi was all-important. (See Smythe alias Martin v. The State, a7ite, p. 244.) Because the court erred in overruling defendant’s motion for new trial, the judgment is reversed and the cause remanded. Revei-sed and remanded. [Opinion delivered December 10, 1884.]