
    LEMCKE v. STATE.
    (No. 4971.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Criminal Law <&wkey;594(4) — Continuance — Absence oe Witness.
    In a. prosecution for slander by imputing want of chastity in the presence of a person, among others, who testified that defendant used the language charged in his presence and in the presence of one K., where it appeared from defendant’s application for continuance on account of the absence of K. that the latter had been subpoenaed, that in obedience to 'the subpoena, while on his way to attend trial, he was seriously • injured in an automobile accident, and was confined in the hospital, and that his injury was such that he could not be interviewed, the medical authorities informing defendant it would be several days before he could be seen, defendant was entitled to continuance.
    Appeal from Matagorda County Court; R. R. Lewis, Judge.
    B. Lemclce was convicted of slander by imputing want of chastity, and he appeals.
    Reversed, and cause remanded.
    E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by information and convicted for slander by imputing the want of chastity to a female in the presence of J. J. Fortenberry and others, and fined $100.

Fortenberry testified that appellant used in substance the language charged in the information in his presence and in the presence of Jerome Kruger. From his testimony it appears that appellant came to his house in company with Kruger, and that Kruger heard such conversation as took place. It seems from his testimony that the conversation was primarily with reference to a fence, hut incidentally the slanderous utterance was made by appellant in the presence and hearing of the witness and Kruger.

The information was filed the 28th day of-May, 1917, and the trial was had about the 2d of June of the same year. Appellant made an application for a continuance on account of the absence of Jerome Kruger, who, as above stated, was shown by the state’s witness to have been present and heard the conversation, and by whom appellant in his application for a continuance stated he could prove that the language imputed to him had not been used by him. From the motion to continue, which was the first motion, it appeared that Kruger had been subpoenaed, and that in obedience to the subpoena, while on his way to attend the trial, on the 1st day of June, was seriously injured in an automobile accident, and at the time the application was filed was confined in the hospital in Bay City in Mata-gorda county; that his injury was such that he could not he interviewed, the medical authorities in charge of him informing appellant that it would be several days before he could he seen. The application contains the statutory requisites, and in our judgment entitled appellant to a continuance. Because of its refusal the judgment of the lower court is reversed, and the cause remanded.

The other questions raised do not, as presented, show error.

PRENDERGAST, J., absent. 
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