
    MANGRUM v. STATE.
    (No. 10464.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1927.)
    1. Criminal law <⅞=»917(2). — Denial of new trial for denial of continuance for absent witness, whose testimony would have supported defense of alibi, held error.
    In prosecution for burglary, denial of motion for new trial, supported by affidavit of absent witness, whose testimony, to secure which continuance was refused, if beli'eved, would have established defense of alibi, held error.
    2. Criminal law <⅛=»917(2) — On motion for new trial, court has no discretion in passing on truth or falsity of testimony of ahsent witness.
    On motion for new trial, court has no discretion in passing on truth or falsity of testimony of absent witness; such matter being one which defendant is entitled to have passed on by jury.
    Commissioners’ Decision.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Fletcher Mangrum was convicted of burglary, and be appeals.
    Reversed and remanded.
    John T. Spann, of Dallas, and H. L. Carpenter, of Greenville, for appellant.
    Sam D. Stinson, State’s Atty., ,of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe .State.
   BAKER, J.

Tbe appellant was convicted of burglary in tbe district court of Hunt county, and bis punishment assessed at two years in tbe penitentiary.

It was the contention of the state that the appellant, together with Homer Horn and Elmer Smith, burglarized a house belonging to and in the possession of Frank Davies, near Quinlan, in Hunt county, Tex., on the night of February 13, 1926, and stole therefrom some automobile casings, rims, tools, and am inner tube belonging to the said Davies. The appellant defended upon the ground of an alibi, and testified that, at the time when the state contended the burglary was committed, he was in the city of Dallas, and that the inner tube identified by the witness Davies as his property, and found in the appellant’s possession, had been purchased by him (appellant) in the city of Dallas and in the presence of one Harry Roach.

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.  