
    TERRY v. STATE.
    (No. 8765.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. Indictment and information <&wkey;>l I (2)fe-Mo-tion to quash indictment because minutes failed to give name of defendant held properly overruled. .
    Motion to quash indictment in due form, because court’s minutes pertaining to finding and return of indictment failed to give name of defendant thereon, held properly overruled, where record gave style of case and number thereof.
    2. Criminal law <&wkey;>595(9) — Refusal of continuance for absence of sick witness held error.
    Where witness was present when hearing of case was to begin, but was sick when case was called for trial, and his testimony, though cumulative, would have contradicted state’s witness and supported defendant’s alibi, refusal to grant a continuance held error for which new trial should have been granted, especially after affidavit of witness had been attached showing what his testimony would be.
    Commissioners’ Decision.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Luther Terry was convicted, of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Phillips, Brown & Morris, of Fort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was charged by indictment with unlawfully selling intoxicating liquor about the 11th of October, 1923, in said county, and convicted in the district court of said county on February 4,1924, and his punishment assessed at confinement in the penitentiary for a term of 2% years.

Appellant complains of the minutes of the district court, in that it is contended that the minutes pertaining to the .finding and returning of the indictment is insufficient because the minutes failed to give the name of the defendant thereon. The record shows that it gives the style of the ease and the number of same, save and except it leaves out the name of the defendant'. The indictment is in due form, and we see no error in the action of the trial court in refusing to grant the motion of the defendant' to quash said indictment.

There are many complaints made and errors assigned concerning the action of the trial court in this case, most of. which will be unnecessary to consider from the disposition we have made of this case and which will,not likely occur again upon another trial.

The most important complaint, as we view the record, is the refusal of the trial court to grant the motion for continuance made by appellant for want of the testimony of John Henson, who resided in Dalias county, Tex., and the court’s refusal to grant motion for new trial in this particular. The record discloses that the defendant was arrested December 13, 1923, and the same day made application for his witnesses, and that said- witness was in attendance upon this court on the 6th of February, 1924, at which time this court was to begin the hearing of this case; but on account of another important case it was not reached, and was passed over until the 12th of February, 1924, and when called again for trial the said witness Henson did not appear, but the record shows from a physician’s certificate that he was suffering from the “flu.”

The testimony of the prosecuting witness stated that he purchased the whisky from the defendant about dusk on October 11, 1923, specifically fixing the date at that particular 'time. The motion for continuance alleged that said witness would testify, if present, that he had a business transaction with the defendant in the county of Dallas and in the town of Garland, Tex., on that date at about 8 o’clock p. m., and the undisputed testimony showed that the distance between that place and Decatur, Tex., was about 70 miles. This was the issue, made by the state and defendant as to whether or not the defendant was present at the time and place contended by the prosecution; the state contending that he sold the whisky about dusk on said date of October 11 in Wise county, and the defense contending that at that time the defendant was in Dallas county in the town of Garland; the state relying solely upon the testimony of the prosecuting witness who, the record disclosed, was the deputy sheriff and who did not 'arrest the defendant at the time he claimed he purchased the whisky, while the defense introduced the wife of defendant, who testified that on that date that the defendant was not at the. place and at her home at the place where the state contended the sale took place, and in fact had left for Dallas on the 9th of said month and did not return until the 14th of said month, and that she was there during all the said time and knew that the defendant was not at said place. The defendant introduced other testimony from witnesses in Dallas and near Garland corroborating the testimony of his wife and his defense. Upon motion for new trial, the defendant attached the affidavit of said witness Henson to the effect that he had been sick and was sick on the 12th of February, 1924, and unable to attend court, and if he were present at said trial that he would testify that he had a business transaction with defendant in the town of Garland about 5 o’clock on the evening of October 11, 1923, in which he made a partial payment to the defendant on a note which he owed defendant on that date. The court, in explaining his action in overruling this motion for continuance, stated that he was of the opinion that it was cumulative testimony. The authorities, in this state hold that, when an alibi is the defense, the more witnesses you produce the stronger it makes the defense, and we think rightly so. Pinckord v. State, 13 Tex. Cr. App. 477; Miles v. State, 14 Tex. Cr. App. 442; Ninnon v. State, 17 Tex. App. 659; White v. State, 90 Tex. Cr. R. 584, 236 S. W. 746; Smythe v. State, 17 Tex. App. 252; Mathason v. State, 89 Tex. Cr. R. 138, 229 S. W. 548.

The diligence in this case was complete, and we are of the opinion that there was error in the court’s overruling this motion for continuance, and especially in not granting the new trial after the affidavit of the witness had been attached showing what his testimony would be, which was very material to the defense in this case.

We think the case of Stubblefield v. State, 94 Tex. Cr. R. 444, 252 S. W. 564, is in point, and, in fact, the instant case is much stronger in behalf of the defendant than the Stub-blefield Case. In that case, this court held:

“While the diligence was not perfect, under’ the peculiar facts it was deemed sufficient. But for the inadvertent destruction of the subpoena the witness would have been subpoenaed, and if subpoenaed, she could not have been present,' owing to her sickness. This was not controverted, and must be taken as true, especially in view of her affidavit attached to motion for new trial.”

For the reasons above stated, we are of the opinion that the trial court was in error, and that this case should be reversed and the cause remanded, and it is accordingly so ordered.

PER CURIAM. Tlie foregoing opinion of the Commission of 'Appeals has been examined by the judges of the Court of Criminal appeals and approved by the court. 
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