
    BATTLE v. STATE.
    (No. 9617.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.)
    Criminal law <&wkey;9l7(2)— Error to refuse motion for new trial, where affidavit of absent material witness deposing to facts statedl in application for continuance attached to motion.
    In prosecution for transporting intoxicating liquor, where application for continuance for absence of material witness was denied, it was error to refuse motion for new trial, where affidavit of such absent witness, deposing to facts stated in application for continuance, was attached to motion for new trial, diligence to procure such witness being shown.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    R. Battle was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Parker & Moore, of Port Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor, the punishment being two years in the penitentiary.

On the 17th of March appellant, while driving a Dodge touring car on the public road, was arrested by officers. In the ear with appellant at the time were Messrs. Richardson, Viner, and Harris. A casual examination of the car would not reveal the presence of whisky. A dose examination disclosed that a receptacle had been built into the car 'back of the upholstering, and under the floor of the car two boxes had been built. In these various places something over two hundred quarts of whisky were found by the officers. Appellant was indicted on the 24th day of March.. arrested on the 26th, and tried on April 1st. On March 29th he caused a subpoena to he issued for one Sargent, who was alleged to be a resident of Tarrant county, Tex. This process was returned by the sheriff showing that the witness was not found in Tarrant county, the officer reciting in his return that he had information that the witness was temporarily absent from home. A continuance was sought on account of the ab-' sence of Sargent.

It was alleged that the witness would testify if present that he resided in Tarrant County, Tex., and was personally acquainted with appellant; that he was present at appellant’s home in Fort Worth in the latter part of February, 1925, when one Walter Davis borrowed from appellant a Dodge touring car, stating that he would return it within a couple of hours; that Davis left with the car and did not return it; that on the following day witness, together with appellant, began a search for Davis and the car, and reported the loss of it to the officers, but heard nothing from Davis or the car until about March 5th, when they received information that the car was in New Orleans, Da.; that in company with appellant witness went to New Orleans, and after, a search finally located the car in a garage; that witness was present when appellant drove the car out of the garage on the 15th of March and started on his return home to Fort Worth; that neither appellant nor any other person placed any whisky in the car at the time or at any time when witness was present, and that no whisky was visible; that said witness would also testify that he was familiar with the automobile which appellant loaned to Davis, and in which appellant was riding at the time of his arrest; that he knows of his own personal knowledge that at the time Davis borrowed the car there were no secret pockets or places in or about it. ' The application for continuance was overruled. This action of the court is one ground of the motion for new trial. Attached to the motion is the affidavit of Sargent, who deposed to the matters alleged in the application. He further says in his affidavit that there was no intoxicating liquor in the car when it was found in New Orleans unless it was concealed from sight; that he was present when appellant drove the car out of the garage in New Orleans on the 15th of March and rode with appellant in the cai-to his (witness’) room, and appellant left, going towards the outskirts of New Orleans and said he was going home. Witness further says in his affidavit that he was familiar with the car and had driven and worked on¡ it many times; that he made some repairs on the car the day Davis got it from appellant, and that witness knows of his own personal knowledge that at the time Davis took possession of the ear there were no secret pockets, places, or compartments in or about it. Witness further says he stayed in New Orleans for several days, and then went, to Houston, Tex., where he remained until the night of April 2, when he left for his home in Fort Worth, arriving there on the morning of April 3.

Appellant having been placed upon trial within a few days after the indictment was returned, we think the diligence used in an effort to secure the attendance of Sargent is amply shown. The materiality of his testimony cannot be questioned. Where an affidavit of an absent material witness deposing to the facts stated in -the application for continuance is attached to the motion for new trial, diligence being shown to secure the witness, the court is in error in refusing a new trial. Long v. State, 39 Tex. Cr. R. 462, 46 S. W. 821, 73 Am. St. Rep. 954; Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548; Derrick v. State, 100 Tex. Cr. R. 223, 272 S. W. 458; Cruz v. State, 100 Tex. Cr. R. 188, 272 S. W. 486. For collation of many authorities, see section 336, Branch’s Ann. Tex. P. C.

We have examined the other bills of exception. They do not appear to be meritorious.

For the error of the court in not granting a new trial under the circumstances stated, the judgment is reversed and the cause remanded. 
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