majority">White, Presiding Judge.

Appellant was indicted for the murder of one Dan Wyant, by cutting his throat with a razor. Up to within a very short time—perhaps less than an hour be*189fore the killing—the parties had lived upon the most intimate" terms, their friendship and affection for each other being of a character similar to that existing between brothers. - In a drunken spree, on the fourth of July, deceased made uncalled for remarks of a most insulting, vulgar and outrageous kind, concerning the mother and sisters of appellant, whom he did not know, and appellant’s demand that he should retract the language, and his refusal to do so was the cause of the unfortunate altercation which resulted in the homicide. Upon the trial appellant was found guilty of murder of the second degree, with punishment assessed at five years imprisonment in the penitentiary.

Before announcement of ready for trial, defendant made an application for continuance for three witnesses; which application the court overruled upon the ground that it did not show proper and legal diligence on the part of defendant to obtain said witnesses. Without noticing the diligence as to the other two witnesses, the facts shown as to the absent witness Thomas Franklin, are that he had been attached, brought to court and placed under Recognizance, in the sum of two hundred dollars, as a witness for defendant, on the fifth day of January, 1886; that he had never been discharged from said recognizance, and that, in obedience to the same, the witness had been in attendance upon the court at each and every term of the court since and up to the term of trial. That on the seventeenth day of January, 1887, the day fixed by the court for taking up the criminal docket, defendant had the witness Franklin called, and finding him absent procured a forfeiture of his recognizance by the court, and on said day sued out an alias attachment for said witness. This attachment was returned by the sheriff of Anderson county on the twenty-third of January “not found.” On the thirty-first of January the motion for continuance was overruled, and on the same day the trial, we presume, was had and concluded, because the date of the judgment is January 31, though the charge of the court bears the file mark date of February 2, A. D. 1887. Thus it will be seen that between the date of the return of the attachment and the judgment, seven or eight day elapsed without any further steps taken by defendant to get his witness. His failure to sue out other process in the interval does show such want of diligence as warranted the court in overruling his application in the first instance.

But, whilst the court properly ruled in the first instance, the *190question is as to the correctness of the court’s ruling upon defendant’s motion for new trial after conviction, when it was the duty of the court again to consider the facts stated in connection with the evidence adduced at the trial. It is provided expressly by the statute, “ 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.” (Code Crim. Proc., art. 560, subdiv. 6.) This rule is not limited solely to applications which on their face show exact compliance with the statutory requisites, but most likely was intended to operate as well in those cases where the application might be defective if the statutory requirements were the sole tests to be applied. The rule is that, even if the application for continuance lacks some of the statutory requirements, if the proposed evidence appears material and true, it should be considered and weighed in connection with the evidence adduced on the motion for new trial. (Stanley v. The State, 16 Texas Ct. App., 393; Beatey v. The State, Id., 421, and for a case directly covering the question as here made by the facts, see Schultz v. The State, 20 Texas Ct. App., 315.)

But it is contended that the court did not err in overruling defendant’s motion for a new trial, considered with reference to the facts stated in the motion for continuance, because testimony substantially the same as that proposed by the absent witness has been produced at the trial. The rule thus invoked is well settled. (Walker v. The State, 13 Texas Ct. App., 618; Beatey v. The State, 16 Texas Ct. App., 421, and authorities there cited.)

McFarland, a witness for defendant, whose testimony does not seem to have been impeached, and who was in the car at the time the difficulty occurred, and was lying in an upper sleeping bunk, says: “I know Thomas Franklin and William Murphy. They were both in the car at tbe time of- the difficulty and had better opportunities to see and hear what occurred than I did. They were lying on bunks below me. I was on an upper bunk.” The State’s witness, Kimbrough, who claims to have seen the difficulty, was attempted to be impeached as to his reputation for truth and veracity His evidence is certainly not the same as that claimed for the absent witness. As adduced, we can not *191say that the testimony is substantially the same as that proposed to be established by the absent witness.

Opinion delivered March 12, 1887.

We are of opinion, upon the facts shown, that the court should have granted the motion for a new trial. Several other errors are complained of, most of which are not likely to occur at another trial: nor will we discuss the questions raised as to the charge of the court. Because the court erred in overruling defendant’s motion for a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.

Citation profile

How this case has been treated — in progress