R. L. Simmons v. The State, 26 Tex. Ct. App. 514

Willson, Judge. We are of the opinion that the testimony •of the absent witnesses, as set forth in the application of the defendant for a continuance, is, in view of the evidence adduced on the trial, both material and probably true. It would tend strongly to destroy the force of the circumstantial testimony adduced by the State in corroboration of the testimony of Mrs. Hough, who was the only witness that testified to the falsity of the statements of defendant upon which perjury is assigned.

Carter’s testimony would explain, at least would tend to explain, why defendant left McLennan county soon after testifying in the divorce suit, and would tend to show that defendant had not fled from McLennan county to escape this prosecution. The testimony of the other two witnesses would tend to contradict and disprove the theory of the State that the defendant was not at Mrs. Hough’s house, nor on her premises, at the time he testified he had sexual intercourse with her, and would tend to explain the most potent, in fact the only, evidence corroborating Mrs.

Hough, in a manner that might render such corroborating evidence, in the estimation of a jury, of no force or weight whatever. Opinion delivered December 5, 1888. It is true that defendant’s application for a continuance does not show legal diligence to obtain the testimony of the absent witnesses, and because it was in this respect insufficient, the the court did not err in refusing to grant the continuance.

But in reviewing the matter on defendant’s motion for a new trial, the question of diligence should have been disregarded, and the only inquiry in the mind of the court should have been, is the absent testimony material to the defendant, and is it probably true? If the evidence adduced on the trial demands an affirmative answer to such inquiry, a new trial should be granted the defendant, notwithstanding his application for a continuance was properly refused. (Willson’s Crim. Stats., sec. 2186; McCline v. The State, 25 Texas Ct. App., 247; Cordway v.

The State, Id., 405.) Such answer is, in our opinion, demanded by the evidence, and the court erred in not granting the defendant a new trial. We find no material error in the charge of the court, nor in any ruling or action of the court except the one above mentioned. We shall not discuss the sufficiency of the evidence to sustain the conviction. On another trial the facts proved may differ materially from those now before us. The judgment is reversed and the cause is remanded. jReversed and remanded»