
    RAGSDALE v. STATE.
    (No. 12864.)
    Court of Criminal Appeals of Texas.
    Dec. 18, 1929.
    Truman. Warren and Alex P. Pope, both of Tyler, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Appellant is a negro woman. Harry King, a negro, testified, that he went to appellant’s home in the city of Tyler on -the 4th day of January, 1928, at night, and bought a pint of whisky from her. Two officers accompanied King to appellant’s house. One of these officers gave King $2.50 with which to buy the whisky. All of the witnesses testified that it was dark. Both officers remained outside. One officer said he saw appellant deliver the whisky to King. The other officer said that he didj not witness the transaction, and did not see appellant on the occasion in question. However, he testified that King had the whis-ky when he came out of the house. The officers made no arrest of appellant at the time; it appearing that she was not arrested until the return of the indictment on the 9th day 'of March, 1928, which was approximately two months after the. offense was alleged to have been committed. Appellant denied that she made the sale of whisky to King, and gave testimony showing that King had threatened 'to cause her trouble on account of her refusal to accept his attentions. In this appellant was supported by the testimony of other witnesses. Further, appellant testified that she was in the town of Winona on the night in question.

Motion for a new trial was based in part on newly discovered evidence. Attached to the motion were the affidavits of a preacher and a collector for a furniture store in Tyler, both of the parties being white men. It appears ■from the affidavit of the preacher that he sold appellant vegetables, and that at times she .owed him small amounts of money; that on .January 4, 1928, he went to appellant’s house .for the purpose of collecting the sum of 40 cents, which she owed him for vegetables; that appellant was not at home; that he again went to her home about 8:30 or 9 o’clock that night, for the purpose of collecting the money due him; that appellant was not at home, nor did he find, any one else there. The affidavit of the other proposed witness was to the effect that he went to the home of appellant on the date in question for the purpose of collecting an installment due by her on some furniture; that he was at her home between 5 and 6 o’clock in the afternoon; that appellant was not at home; that he found no one in the house.

That the new testimony is material is clear. 'Moreover, it appears that it was not owing to the want of due diligence on the part of either appellant or her counsel that the new testimony was not discovered sooner. In Branch’s Annotated Penal Code of Texas, § 192, the rule is stated as follows:

“To warrant a new trial on the ground that new testimony has been discovered since the trial it is incumbent on defendant to sat- ■ isfy the court that the new testimony has come to his knowledge since the trial and, that it was not known beforehand, and it must be such-as reasonable diligence could not have secured at the former trial; it must be competent, material to the issue, and probably true, going to the merits and not merely cumulative or collateral nor merely to impeach a former witness; and it must appear that it is reasonably probably that it will change the result.”'

Our examination of the record, leads us to the conclusion that the new testimony is within the rule above announced. The issue of guilt was closely contested. We think it is reasonably^ probable, in the light of the record, that the new testimony will change the result on another trial.

The judgment is reversed, and cause remanded.

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..  