290 S.W. 166 | Tex. Crim. App. | 1927
Tbe appellant was convicted of burglary in tbe district court of Hunt county, and bis punishment assessed at two years in tbe penitentiary.
The appellant, in due time, presented his first application for a continuance for the want of the testimony of the said Harry Roach, alleging that he expected to prove by said witness that he saw appellant, on the night of the alleged burglary, buy an inner tube of a gray or grayish color for a Ford car at a garage and filling station on East Grand street in Dallas, Tex. The court overruled the motion, and forced the appellant to trial, although the application showed that the said witness had been duly subpoenaed. The appellant, in his own behalf, testified that the inner tube which the prosecuting witness Davies identified as being his property was the same tube that Roach saw him purchase and pay for in the' city of Dallas. The appellant, in his motion for a new trial, attached thereto the affidavit of the said Harry Roach covering and sustaining the allegations in the motion for continuance and corroborating the testimony of the appellant upon the trial. We think the court, under the facts of this case, fell into error in refusing to grant a new trial for the want of the testimony of the said Roach. This testimony was very material to the defense of the appellant, and, if believed by the jury, would have been fatal to the contention of the state to the effect that the property found in appellant’s possession was that lost by the witness Davies. Roach’s affidavit being secured and attached to the motion for new trial, there was no discretion left to the trial judge in passing upon the truth or falsity of the desired testimony. ' This was a matter which the appellant was entitled to have passed upon by a jury. See Branch’s Ann. P. C. § 334, p. 193, citing Baines v. State, 42 Tex. Or. R. 510, 61 S. W. 119, 312; also, see, White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745.
There are other questions raised on this appeal which are not likely to occur upon another trial, and for that reason they are not discussed.
For the error above discussed, we are of the opinion that the judgment of .the trial court should be reversed and remanded, and it is accordingly so ordered.
PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.