
    BURTON v. STATE.
    (No. 6055.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    1. Criminal law <§=595(6) — 'Testimony of absent witness held of such materiality as to require granting of continuance.
    In a prosecution for assault with intent to murder, the testimony of a witness who was with prosecuting witness at the time of the assault was of such materiality on the issue as to whether the latter presented a gun in an offensive attitude before defendant fired as to render it incumbent on the court to grant defendant’s application for a continuance to procure his testimony.
    2. Criminal law <§=597(1) — Evidence held not to justify denial of continuance on ground of improbability that absent witness saw what took place.
    On an issue as to whether prosecuting witness in a prosecution for assault with intent to murder made a threatening demonstration before defendant fired, where it was agreed that an absent witness was with prosecuting witness a few moments before the firing began, it was not so improbable that he saw what took place as to justify ignoring an application for a continuance to procure his testimony.
    3. Criminal law <§=596(2) — Evidence held not to justify denial of continuance on ground absent witness would not corroborate defendant’s theory.
    It was error to deny a continuance on the ground that the absent witness whose testimony was sought would not corroborate defendant’s theory, in view of uncontroverted evidence of ill feeling between the parties, a previous difficulty between them, prosecuting witness’ conduct in arming himself, threats by him, and defendant’s description of his conduct immediately prior to the assault. -
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    George Burton was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Kirby, King <& Keeble, of Abilene, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for two years.

The appellant and Avant, the injured party, are negroes. A short time before the alleged assault, and on the same day, they had a difficulty, in which, according to some of the testimony, the appellant exhibited a knife and Avant a hatchet. They separated, both riding in automobiles. Appellant claims that, on his way to a picture show after the separation, he was informed that Avant had procured a gun and was warned against proceeding further; that he determined to go home, and while on the route taken by him he observed Avant riding in his car with, a gun at his side; that appellant in the meantime, and after receiving the warning, had procured a gun. Appellant fired twice at xlv-ant, and claims that, at the time he fired the first shot, Avant- had his gun in his hand in a position to fire at the appellant. It was conceded that Avant had a gun with him in the car, but that he attempted to use it at the-time the appellant first fired was controverted.

Avant testified that when the first shot was fired he was driving his car; that, before the encounter, riding in the ear with him were two negroes, Leon Green and Dead Easy;1 Green, was riding in the front seat, and Dead Easy in the back seat; that a short time bé-fore the shooting began Dead Easy jumped off the car. Avant admitted the possession of the gun and that it was loaded, and claimed that he had gotten it for his defense, but disclaimed making any demonstration with it until after the shooting had begun. In this Green corroborated him, and also stated that before the shot was fired Dead Easy got out of the car while it was running.

In his first application, appellant sought a continuance to procure the testimony of the negro Dead Easy, claiming that by him proof would be made that, before the appellant fired or made any demonstration, Avant presented a gun in an offensive attitude; that, impressed with the idea that Avant was to renew the difficulty, he jumped over the door and quit the car. The diligence to procure the attendance appears sufficient and was not contested. The materiality of the absent testimony is set out in the application, and, viewed in the light of subsequent developments upon the trial, was, we think, of such materiality as rendered it incumbent upon the trial court to grant the application in the first instance, and, failing in that, to set aside the Verdict.

The proof is uncontrovert'ed that the parties — appellant and Avant — had had a previous difficulty and made mutual hostile demonstrations; that thereafter each of them had armed themselves; that when they met shots were fired by the appellant and a demonstration made by Avant. The relative time at which Avant made the demonstration —that is, whether before the appellant fired or not — was the vital controverted point. Av-ant and one of the parties who was with him at the time described this phase of the encounter in a manner conflicting with that

of the appellant. All agree that the absent witness was riding in the car with Avant a few moments before the firing began. It cannot, therefore, be said that it is so improbable that he saw what took place as to justify ignoring the application upon that ground, and recalling the facts to which we have briefly adverted, showing the ill feeling between the parties, the previous difficulty, Avant’s conduct in arming himself, testimony of his threats, and the description by the appellant of his conduct, we think a conclusion that he would not testify in corroboration of the appellant’s theory not warranted. Phipps v. State, 34 Tex. Cr. R. 560, 31 S. W. 397; Roquemore v. State, 54 Tex. Cr. R. 595, 114 S. W. 140; Koller v. State, 36 Tex. Cr. R. 499, 38 S. W. 44; Beard v. State, 55 Tex. Cr. R. 154, 115 S. W. 592, 131 Am. St. Rep. 806; Branch’s Crim. Law, § 259.

For the reasons stated, the judgment is reversed, and the cause remanded. 
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