Hyburn v. State
26 Tex. Ct. App. 668
| Tex. App. | 1886
White, Presiding Judge.

Appellant made an alternative application on the day of trial for a postponement or a continu*670anee of the cause on account of absent witnesses. Amongst other matters it was stated in such application “that on the thirtieth day of March, 1886, that being the day on which defendant’s case was reached and called for trial, defendant had his said witnesses called, and, they failing to respond, he at once applied for in due form of law and had issued an attachment for all of said witnesses (except Peebles), to Travis county, Texas, and had said attachment placed in the hands of the .sheriff of said Travis county for immediate service upon said witnesses; that this attachment was issued, after a subpoena had been issued and served on all of said witnesses, on said March 30, 1886. Defendant expects to prove by said John Wallace and George Peebles that, at the time of the alleged offense, they were in the same house as the complaining witness, Jane Cain, just separated from her by a thin partition wall, and that said Jane Cain knew they were there, Jane Cain, John Wallace and George Peebles being all white and defendant black; that said Wallace and Peebles heard no outcry nor alarm, nor any conversation between Jane Cain and anyone else; that an ordinary conversation can be heard from the room in which Jane Cain was and the said room in which said Wallace and Peebles were.”

Opinion delivered May 8, 1886.

There can be no question as to the importance and materiality of this testimony. The absent witness Wallace had never disobeyed a subpoena, and had been served with a new subpoena on the day of trial. As to him there could be no question of diligence.

We are of opinion the court should have granted a postponement or continuance in the first instance. Failing to do so, a new trial should have been granted, when this absent testimony was entitled to a second consideration in connection with the other evidence in the case.

Because of error in overruling motion for new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.