
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1912.)
    1. Criminal Law (§ 598) — Continuance— Diligence.
    Where a person was prosecuted for slander by indictment and it was dismissed, and the defendant therein later rearrested under a complaint and information, the dismissal of the indictment made the latter cause a new cause and entitled the defendant to the same legal rights as though he had never been indicted, so that, where a material witness for defendant, who was in attendance while the cause was pending upon the indictment, thereafter went away, and process, issued for her as soon as the second arrest occurred, could not be served, there was sufficient diligence shown to justify a continuance on account of her absence.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 600) — Continuance.
    An admission made by the prosecution, in order to defeat an application for a continuance in a criminal cause on the ground of the absence of a material witness, is insufficient, where it does not admit the truth of the testimony as well as the nature of that which would be given, and after such an admission and the consequent overruling of ,the motion the state cannot controvert tbfb facts which would have been testified to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347; Dec. Dig. § 000.]
    3. Criminal Law (§ 800) — Instructions— Statutory Terms.
    In a criminal prosecution for slander, the accused is entitled to a special charge defining “wantonly” and “willfully” as mentioned in the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810; Dec. Dig. § .800.]
    Appeal from Hill County Court; Horton B. Porter, Judge.
    C. H. Roberts was convicted of slander, and appeals.
    Reversed and remanded.
    Morrow & Morrow and A. P. McKinnon, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of slander; his punishment being assessed at a fine of $500 and 12 months’ imprisonment in the county jail.

1. The slanderous imputation is charged to be in the following language; “If Miller did not get it, it was his own fault. It was there for him. All he had to do was to put his hands' on it.” This is charged to have been a reference to one Miss Doodle Bacon. The matter arises out of about the following state of facts: Miller was the railroad agent and boarded at Mrs. Bacon’s, the mother of thfe alleged slandered girl. This language was used in connection with a visit of Miss Doodle Bacon with Miller to the depot at night; the state contending that Miller did not go to the depot to open up the ticket window until about 8 o’clock, or at least a few minutes before the arrival of the train, and that Miss Bacon accompanied him, and that there was nothing wrong in the visit, and that the time was not sufficient, between their arrival at the ticket office and the arrival of the train and the people who went to the depot, for anything wrong to have occurred between them. Appellant’s contention was that Miss Bacon and Bliller were there from 6:30 o’clock in the evening until the train arrived at something after 8 o’clock in the ticket office, and there was no light in the depot during the time that they were there. The imputation grew out of the fact that Miss Bacon and Miller were in the ticket office from 6:30 o’clock until a short time before the arrival of the train something after 8 o’clock, and that nobody else was at the depot during that time except Miller and Miss Bacon. Prior to the trial in which this conviction occurred, there had been an indictment found against appellant for the same matter; but that had been dismissed a few days before this trial, and the case was prosecuted by complaint and information. The indictment was dismissed about May 1st, and a complaint and information immediately filed. When the case was called for trial, appellant filed an application for continuance on account of the absence of Miss Bell Simpson. We do not care to discuss the formal allegations of the continuance. We think the diligence was sufficient, and the testimony was certainly of a most material character. Miss Simpson, it seems, had been in attendance upon the court as a witness when the case was pending under indictment. When the indictment was dismissed, she went away, and, as soon as the arrest occurred under the complaint and information, process was issued for her, but it was not served. The case went to trial on the 5th of May. To meet the state’s case, it was proposed to prove by Miss Simpson that she was aware of the fact and would testify that Miss Doodle Bacon went to the depot about 6:30 o’clock and did not leave there until after 8:15. It is unnecessary to go into the details of her testimony further than to say that it covered the time from 6:30 until 8:15 o’clock, and she would have testified that Miss Bacon went there at 6:30 and did not leave during that time until 8:15 o’clock.

When the indictment was quashed or dismissed and the new proceedings were instituted, it was a new case, and appellant was entitled to all the legal rights accruing to him as if the indictment had never been preferred and dismissed. Whitesides v. State, 44 Tex. Cr. R. 410, 71 S. W. 969; McFadin v. State, 44 Tex. Cr. R. 472, 72 S. W. 172. Therefore the diligence would only apply to the new proceedings. This seems to have been rather conceded by the state, for, when the application was filed, the county attorney, to defeat the application, admitted in open court that the testimony of Miss Bell Simpson as set out in the application was true.

Appellant insisted upon a continuance, but the court overruled it on the admission of the truth of. the absent testimony by the county attorney. It has been held in this state, in quite a number of cases, that where continuance is sought, and the absent testimony is conceded to be true, this will avoid the continuance, and the court would not be in error in overruling it. McGrew v. State, 31 Tex. Cr. R. 339, 20 S. W. 740; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753; Jackson v. State, 48 Tex. Cr. R. 648, 90 S. W. 34; Francis v. State, 55 S. W. 489; Gardner v. State, 59 S. W. 1115; Wheeler v. State, 136 S. W. 68. It is also a well-established rule that, in order to defeat the application for a continuance, the prosecution must admit the truth of the absent evidence. It is not sufficient that it be admitted that the absent witness would testify or swear as stated in the application. Skaro v. State, 43 Tex. 88; Hackett v. State, 13 Tex. App. 406; Purvis v. State, 52 Tex. Cr. R. 316, 106 S. W. 355. The application was sufficient on its face. Phillips v. State, 50 Tex. Cr. R. 128, 94 S. W. 1051; Hardin v. State, 52 Tex. Cr. R. 239, 106 S. W. 352; Simmons v. State, 58 Tex. Cr. R. 574, 126 S. W. 1157; Casey v. State, 51 Tex. Cr. R. 436, 102 S. W. 725. But so far as this case is concerned, it might be conceded that the diligence was not technically strict, and yet the court would be in error in refusing to grant the continuance or in error in admitting evidence to contradict the admitted truth of the testimony of the absent witness. This was the first application, and the diligence under the authorities is not so strict in the first as in subsequent applications; but, whether the diligence was sufficient or not, where the prosecution admits the testimony of the absent witness to be true in order to defeat the application, that testimony will be held to be true, and the state is bound by it, and any supposed want of diligence will be cured by the admission. If the diligence was not sufficient, the court should overrule it upon that ground, and not upon the ground that the absent testimony was admitted to bp true. This was an admission in order to defeat the application, and the party forced to trial by the action of the court upon the admisr sion of the truthfulness of the absent testimony, and, under these circumstances, the prosecution will not be permitted to controvert in any way the facts set out in the application admitted to be true. The court should not permit this character of practice, yet, in the face of this admission by the prosecution, the county attorney was permitted to introduce witnesses to controvert and contradict the testimony which he had admitted to be true, to the effect that the girl did not go there at 6:30 and remain until 8:15 o’clock, as Miss Simpson would have testified. The judgment must be reversed for this reason.

2. Appellant asked a special charge defining “wantonly” and “willfully” as mentioned in the statute. These terms were not defined by the court in its charge. Exception was properly reserved to the court’s charge and the failure to give the requested instructions. We call attention to this so that upon another trial a proper charge on this subject can be given. Rainwater v. State, 46 Tex. Cr. R. 496, 81 S. W. 38, was reversed by this court for failure of the court to give almost, if not literally, the identical charge here asked and refused.

The judgment is reversed, and the cause is remanded.  