¶1On the nineteenth of October, 1871, the appellant was tried in the District Court of Colorado county, and found guilty of murder in the first degree, “and his punishment assessed at death.”
¶2The indictment bears date the eleventh of October; a copy was served upon the appellant on the twelfth, and on the thirteenth he had issued attachments for several witnesses residing in Colorado county.
¶3At the trial he filed an affidavit for a continuance in the usual form, which was overruled.
¶4The transcript contains neither a copy of the attachment nor a statement of facts ; we are therefore unable to determine the correctness of the judgment of the court in overruling the application for a new trial.
¶5But the charge of the court and the bill of exceptions show that the appellant was convicted wholly on circumstantial evidence.
¶6How, in view of the gravity of the charge and the extremity of the penalty, on the authority of Cooper v. The State, 19 Texas R., 449, we are of opinion that a new trial should have been granted.
¶7Wheeler J., in delivering the opinion of the court, says : “It cannot be denied that the affidavit for a continuance contains a substantial compliance with the statute, if the testimony which it discloses was material. In a case where the evidence was direct and positive, circumstances of the character of those mentioned might not be deemed relevant or material. Yet, in a case like the present, depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived; and in such a case it is peculiarly proper that the jury should have before them every fact and *361circumstance, however slight, which may aid them in coming to a satisfactory conclusion, as to the guilt or innocence of the accused.”
¶8The judgment is reversed and the cause remanded.
¶9Reversed and remanded.