
    HOCK v. STATE.
    (No. 8280.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    1. Criminal law &wkey;>609 — Contesting application for continuance for testimony of absent witness on ground of fálsity of his claimed testimony held error.
    On application for continuance in liquor selling prosecution to secure testimony of a witness, who would testify that he was .present with prosecuting witness H. at defendant’s house at time of the alleged sale, and that no sale was made, it was improper for the state to file, contest of the application stating that absent witness was not with H. at the time and support the contest by testimony of H. to that effect.
    2. Criminal law &wkey;594( I) — Defendant’s first application for continuance for absence of witness held improperly refused.
    Defendant’s first application for continuance, for absence of witness, it appearing that the witness had been subpoenaed, was resident of the county, ill, and unable to attend, and that his testimony was material, held improperly refused.
    <gz^>For other cases see same topic and KEü-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Martin Hock was convicted of selling intoxicating liquor, and appeals.
    Reversed and remanded.
    Reasonover & Reasonover, of Denison, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. Stage’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Grayson county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There are two bills of exception in this record. One of them was to the refusal of a continuance. In his first application for a continuance appellant asked that the case be not tried because of the absence of Joe Hock, a brother of appellant, stating in the application that the absent witness had been duly served with subpoena and was sick with pneumonia and could not be present. As to the materiality of his testimony, it was stated in the application that if present he would testify that he came to the house of appellant on the 6th of February with the prosecuting witness Hill, and was with Hill during his entire stay at said house, and that he would swear that appellant made no sale of liquor to Hill on that occasion. The state filed a contest of this application for continuance setting up that Joe Hock was not with Hill on the occasion in question. Supporting this contest, the state introduced before the learned trial judge the witness» Hill, who stated that Joe Hock was not with him at the time mentioned. Appellant introduced evidence before the court in support of the allegations of his application, showing by his testimony that I-Iock was present. A contest based upon such grounds and supported by such testimony was not proper. The questions as to whether the witness was present, and would swear as statéd, were for the jury and ^ould not be passed upon and settled adversely to the appellant by the trial court.

The application being the first made by appellant, and it appearing that the witness had been served with process and was a resident of the county of the forum, and was ill and unable to attend court, and that his testimony was material, we must conclude the learned trial judge in error in refusing to continue the ca?e. -

Eor the error mentioned, the judgment will be reversed, and the cause remanded.  