
    MOONEY v. STATE.
    (No. 9183.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.)
    Criminal law <S=»595(4) — Absence of material witness is sufficient ground for granting continuance.
    Where defendant on trial for unlawfully manufacturing liquor conformed to statutory requirements in motion for continuance because of absence of his physician, a material witness, by whose testimony he expected to prove he made liquor for medicinal purposes, it was error to deny the motion.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Ben Mooney was convicted of unlawfully manufacturing liquor, and he appeals.
    Reversed and remanded.
    Seale & Denman, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst.- State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Nacogdoches county for the offense of unlawfully manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

There was no contradiction to the state’s ease to the effect that appellant was manufacturing intoxicating liquor, but it was the appellant’s theory, and he testified to the effect, that he was manufacturing it for medicinal purposes. He testified that he came of a tubercular family, and that he was suffering from tuberculosis, and that he had been advised by his family physician and the physician of his father’s family to use whisky in moderation for his ailment.

When called upon for an announcement, appellant filed his first application for a continuance on account of the absence of the witness Dr. J. M. Rogers, who resided at Neches in Anderson county, Tex. The record discloses that the diligence used to procure the attendance of Dr. Rogers was unassailable, and it further shows that the reason why he was not in attendance on the court was on account of the illness of his own son.

Appellaht in his motion for a continuance alleged that he expected to prove by the yitness Dr. Rogers that he had attended the father, sister, and two brothers of defendant, and that all the said parties died with consumption, and that, as the appellant’s family physician, he had prescribed for him and had advised him to use and keep on hand intoxicating liquor to be used as a medicine for lung disease from which the appellant suffered. Attached to appellant’s motion for a new trial is found the affidavit of the witness Dr. Rogers, and in this affidavit he avers his willingness to testify in detail to, the matters alleged in appellant’s first application for a continuance. Among other things, the witness in his affidavit states that from his examination of the appellant he is of the opinion that he is afflicted with lung trouble, and that, knowing the histofy of the family, he is suffering at the present' time w}th weak lungs, and that he had' prescribed whisky for him, and had advised him to use whisky in moderate quantities, believing that it would be beneficial to him in his weakened condition.

The identical question raised here was decided in accordance with appellant’s eontention in the case of Ellis v. State, 93 Tex. Cr. R. 322, 247 S. W. 509. In that case Presiding Judge Morrow of this court said:

“In our judgment, the appellant had the right to prove -that he was making the whisky solely' for medicinal purposes for his own use. The trial court seems to have taken this view, and received Appellant’s testimony, and instructed the jury on the subject. Appellant, however, was entitled to support his own testimony by that of the physician under whose advices he was acting.”

Appellant conformed to all the statutory requirements with reference to a first application for continuance, and the court erred in refusing to grant his motion for new trial based on the error in overruling said first application.

Other assignments contained in the record may not arise on another trial, and are not discussed. But for the error of the court in overruling- appellant’s first application for a continuance the judgment is reversed and the cause remanded.

PER CURIAMí 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.  