
    McLENDON v. STATE.
    (No. 9172.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Criminal law <$=5371(1) — Evidence as to motive of defendant aiding prisoner to escape held admissible.
    In prosecution for aiding prisoner to escape in an automobile after running down a child, evidence showing killing of child, and that defendant and prisoner were carrying whisky in car at time homicide was committed, held admissible, since it shed light on motive of defendant in aiding prisoner to escape.
    2. Escape @=>I I — Charge in prosecution for aiding prisoner to escape held adequately to cover issues.
    In prosecution for aiding prisoner to escape after running down a child in an automobile, charge requiring jury before they could convict to believe beyond a reasonable doubt that prisoner was in custody, and defendant willfully aided in his escape, and that prisoner did escape by defendant’s act, held adequately to cover the issues.
    3. Criminal law <$=5595(4) — Denial of defendant’s first application for continuance for absent witnesses held erroneous, where their testimony would have supported defendant’s contention.
    In prosecution for aiding 'prisoner to escape in an automobile after running down a child, denial of • defendant’s first application for continuance to secure testimony of absent witnesses held erroneous, where their testimony was clearly admissible as supporting defendant’s contention that his purpose in leaving scene of homicide was to protect himself from violence at hands of bystanders.
    4. Criminal law <@=5595(4) — Denial of first application for continuance for absent witness, whose testimony would contradict state’s theory, held erroneous.
    In prosecution for aiding prisoner to escape in an automobile after running down a child, denial of defendant’s first application for continuance for absent witness held erroneous, where his testimony would tend to contradict state’s theory that motive for escape was that defendant and prisoner were transporting and had been drinking liquor when homicide took place.
    5. Criminal law @=>589(1) — When first application for continuance should be granted stated.
    When diligence is sufficient, and absent testimony is material and in cognizance with defendant’s testimony on trial, or it contradicts state’s case, a first application for continuance should be granted.
    @=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Gillespie County ; J. H. McLean, Judge.
    N. R. McLendon was convicted of aiding a prisoner to escape, and lie appeals.
    Reversed and remanded.
    V. B. Goar, of Johnson City, and T. H. McGregor and A. L. Love, both of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.-

The appellant was convicted in the district court of Gillespie county for the offense of aiding a prisoner to escape, and his punishment assessed at confinement in the penitentiary for a term of two years.

The facts from the standpoint of the state show that the appellant and one Johnson were traveling in an automobile at a high rate of speed, and, in passing a church, ran over and killed a child. After so doing, the state’s testimony shows that they failed to stop and render aid to said child, but in a few minutes were overtaken by other parties who were present at the scene of the homicide, and the said Johnson, who was driving the car, was arrested by a deputy sheriff, who had been advised of the offense committed by the said Johnson, and that thereafter the appellant aided the said Johnson in ■shifting the gear of his automobile, and thereby enabled him to escape from the custody of the said officer.

Many complaints are made at the court’s action in liermitting the state to prove the facts concerning the killing of the child, and also to show that the appellant and the said Johnson were carrying whisky in the car at the time the homicide was committed. We have carefully considered these complaints, and have reached the conclusion that the testimony concerning both the billing of the child and the transportation of the liquor was admissible. We think this testimony was so interrelated to the facts concerning the charge for which the appellant 'was on trial as to cause them to shed light on the motive and intent of the appellant in aiding the said Johnson to escape. This testimony was admissible as contradicting the appellant’s theory that he did not participate in aiding the said Johnson to escape and also in rebuttal of his theory that he left with the said Johnson because he was in fear of injury to himself from the assembled crowd. Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297, 249 S. W. 468; King Dyer’s Case, S. W.-, this day decided.

We have examined very carefully appellant’s complaints at the charge of the court, and we have reached the conclusion that they are without merit. The court in his main charge instructed the jury that before they could convict the defendant they must believe beyond a reasonable doubt that the said Johnson was a person in the custody of the deputy sheriff named; and, second, that the said appellant willfully aided in the escape of the said Johnson from the custody of the said officer; and, third, that the act of shifting the gear of the automobile, if any, was done with the intent to aid the said Johnson in making his escape; and, fourth, that the said Johnson did make his escape hy virtue of the aid rendered by the said appellant. We think this charge covered the issues succinctly and cogently which were presented by the testimony of the' case.

However, ■ the case must be reversed because of the court’s action in refusing to grant a new trial based on a complaint therein to the effect that the court erred in overruling appellant’s first application for a continuance. Appellant, when called on for an announcement, presented to the court his first application for a continuance, in which he alleged the absence of the witnesses Homage, Cobb, and Crider. By the first two witnesses appellant alleged that he expected to prove that they arrived at the point where the killing of the child occurred immediately after the happening thereof, and that the men there assembled were very much excited and enraged, and that they stated in the presence and hearing of the said witnesses that, if the said Johnson ,and appellant had not left when they did, they would have killed the said Johnson and appellant, or would have done them serious bodily injury. This testimony was clearly admissible as supporting appellant’s contention that his purpose in leaving the scene of the homicide was not- to aid the said Johnson in escaping from arrest, but was done for the purpose of protecting himself from violence at the hands of the outraged citizens who had assembled there. We think this testimony was clearly admissible, and, if true, would have aided in solving one of the issues presented by the testimony in the case.

By the witness Crider appellant alleged that he could show that the said witness repaired the car in which they were riding only about SO minutes before the homicide happened, and that he had opportunity to observe and examine the car, and that no whisky was contained therein, and that neither the appellant nor the said Johnson were -drinking at the time they left the witness’ garage, which was only about 30 minutes before the homicide took place. On the trial of the case the testimony shows that the appellant and Johnson came directly without a stop from the place where they left Crider to the scene of the homicide. This testimony of the witness Grider was highly material to the appellant’s defense, in view of the fact that the state very properly undertook to show as a motive for the escape that appellant and Johnson were transporting whisky at the time the homicide took place, and the state’s testimony also, showed that both the appellant and Johnson had been drinking liquor at the time of the homicide and at the time of the escape of Johnson. As above indicated, this testimony on the part of the state was admissible to show motive and intent on the part of the appellant in aiding Johnson to escape, but it is also true that the appellant had the right under the law to contradict and rebut this testimony by any evidence that would tend to do so. We think the testimony of the absent witness Crider would have been very material in aiding the jury in solving this issue, and the court was without the right to deprive this * appellant of the same. An inspection of the motion for a continuance and the bill 'of exceptions preserving the error in overruling the same discloses the fact, in our opinion that diligence was used to procure the attendance of these witnesses. It is the well-settled rule in this state that, when the diligence is sufficient, and the absent testimony is material, and in cognizance with defendant’s testimony on the trial, or if it contradicts the state’s case, a first application for a continuance should be granted. Section 335, Branch’s P. C., and the many authorities there cited.

, Our views on this question have been recently expressed in the ease of Derrick v. State, 272 S. W. 458, and in the case of Bryant v. State, 271 S. W. 610.

Because a new trial should have been granted on account of the court’s action in-overruling appellant’s first application for a continuance, it is our opinion that the judgment should be. reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      
       Rehearing pending.
     