Cooper v. State

19 Tex. 449 | Tex. | 1857

Wheeler, J.

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 circumstance, however slight, which may aid them in coming to a satisfactory conclusion, as to the guilt or innocence of the accused. Although what the affidavit proposed to prove by the witness, and what he stated in his examination before the magistrate, may not seem to be very material, and though it were all he knew that was material, the prisoner was entitled to have the benefit of it from the witness himself before the jury. But it is difficult to resist the conviction that the witness knew more, and that an examination might have elicited facts having a material bearing upon the case.

The Court could not know in advance, what would be the character of the evidence produced up on the trial. It might be such as to demonstrate the guilt or innocence of the accused, and the immateriality of the witness’s testimony ; and we do not hold therefore, that it was error to refuse the continuance. But when this was made a ground of the motion for a new trial, and the facts were before the Court and the character of the evidence seen, we think the materiality of the witness was so apparent that a new trial ought to have been granted. It is impossible to read the evidence, as embodied in the record, without feeling a strong desire to know what this witness would testify. The jury must have felt that desire ; and, if practicable, the prisoner ought to have the benefit of gratifying it, if indeed it should prove a benefit; and of that it was his province to judge.

It has been intimated that the prisoner may not have used due diligence to obtain the attendance of the witness ; for that, although he states that he has had the witness duly subpoenaed, yet there is no subpoena in the record. There is an agreement of counsel, that the subpoenas shall be copied. The statement of facts however does not purport to contain them; and although a great number of witnesses testified, but one subpoena is contained in the transcript, and that is for a witness who does not appear to have b een called to testify. Some, if not all of the witnesses, were doubtless subpoenaed, and the Clerk has omitted to copy the subpcenaes. Besides there is an attachment for this witness in the record, which would not have issued if there had not been evidence before the Court that he had been duly subpoenaed. There can be no other inference drawn from the record, than that the witness had been subpoenaed. In view of the case as presented upon the application for a new trial, we think it ought to have been granted.

In disposing of the case upon this ground, we have thought it proper to abstain from any comment upon the evidence. The further proceedings in the cause will be conducted in reference to the new Code of Criminal Procedure; it is not probable that the portion of the charge of the Court, to which exception was taken will be, as we think it better it should not be, repeated in terms; and as there is no probability that any of the other questions of law, on which the reversal was sought, will again arise for decision, their discussion would be useless and unprofitable.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.