
    (86 Tex. Cr. R. 285)
    BELAND v. STATE.
    (No. 5473.)
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1919.
    On Motion for Rehearing, Jan. 14, 1920.)
    1. Witnesses <&wkey;328 — Evidence oe use oe DRUGS BY PROSECUTING WITNESS ADMISSIBLE.
    Evidence that prosecuting witness, upon whose testimony the state relied almost entirely for conviction, was an habitual user of cocaine, morphine, and opium, was admissible as a circumstance to be considered by jury in determining his memory and mental condition, without proof that witness was under influence of such drug at time of testifying.
    2. Criminal law <&wkey;941(2) — New trial PROPER TO PROCURE TESTIMONY CORROBORATING INTERESTED WITNESS.
    Where principal witness for defendant was shown to be favorably inclined toward defendant, and was attacked by state in such manner as to probably justify jury in doubting truthfulness of her testimony, refusal to continue trial for absence of two disinterested witnesses, who would have strongly corroborated testimony of such witness, on motion showing reasonable diligence, held■ error; the evidence of the absent witnesses not being merely cumulative.
    Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.
    Charley Beland was convicted of felony theft, and he appeals.
    Reversed and remanded.
    Poulter & Koenig, of Ft. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the criminal district court of Tarrant county of a felony theft, and his punishment fixed at three years’ confinement in the state penitentiary. There are but two errors in the record which we will discuss:

On the trial appellant offered to prove by the prosecuting witness himself, and by several other witnesses-that said prosecuting witness, upon whose testimony the state relied almost entirely for a conviction, was an habitual user of dope, to wit, cocaine, morphine, and opium. This testimony was excluded by thé court on the state’s objection. In this we think the court was in error. It has been held in this state in a number of cases that it may be shown that a witness was drunk at the time of the occurrence about which he seeks to testify: Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465; Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925. We are of opinion that, if it can be successfully established that a material witness is' an habitual user of cocaine, morphine, or opium, that fact should be admitted as a circumstance to be considered by the jury in determining his memory and mental condition.

The other error is that relating to the refusal of the court to grant a new trial upon newly discovered evidence. The principal witness for the appellant was attacked by the state in such manner as to probably justify the jury in having doubts as to the truthfulness of her testimony, standing alone. The affidavits of two other witnesses, as to material facts strongly corroborating said principal witness for the defense, were attached to the appellant’s motion for a new trial, which motion sufficiently showed that the testimony of said parties was unknown to the appellant or to his attorneys, and could not have been discovered by the use of reasonable diligence. There was no attack by the state upon the motion for a new trial, and no enort to controvert any of the facts set up in said affidavits. We think the showing sufficient to have required the granting of a new trial.

We observe an error in the court’s charge relative to the penalty; but, in view of the verdict of the jury, do not regard this as material.

For the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded.

On Motion for Rehearing.

The state brings this case before us upon its motion for a rehearing. It is claimed that we were wrong in holding that the trial court erred in refusing to permit appellant to show that the prosecuting witness for the state was an habitual user of morphine, cocaine, etc. The state’s contention is that, unless it .be shown that the witness was Under the influence of the drug at the time he testified, the evidence to show that he was a user of such drugs, would not be admissible. We adhere to our former opinion in this matter, and cite the case of Anderson v. State, 65 Tex. Cr. R. 365, 144 S. W. 282, in which this court held such evidence admissible as affecting, the credibility of a witness and the weight of the testimony.

The state also contends that the alleged newly discovered evidence for appellant was cumulative, and for that reason the motion for a new trial on this ground was properly overruled in the court below, and we are referred to the list of authorities cited in section 203 of Mr. Branch’s Annotated Penal Code. One Mildred Criner was the only fact witness for the appellant, and if her testimony was true the alleged theft was committed by the state’s main witness, and appellant was not guilty. The cross-examination of this witness by the state tended strongly to attack her character and reputation, as well" as to show her favorable inclination toward the appellant.

In his motion for a new trial, appellant set up as newly discovered evidence certain matters, and attached the affidavits of two witnesses, setting forth facts which strongly tended to sustain the testimony of Mildred Criner in its most material points, and the facts contained in said affidavits materially support the appellant’s defense, and show, the attitude of the said state’s witness. Such testimony, coming from disinterested witnesses, against whose character and interest in the case no charge is made, would go beyond mere cumulative evidence, and the appellant was entitled to the benefit of the same.

Believing our original opinion was correct, the motion for a rehearing is overruled. 
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