
    ROBERTS v. STATE.
    (No. 6217.)
    (Court of Criminal Appeals of Texas.
    May 25, 1921.)
    Criminal law <⅜=>594(1) — Court held not within its discretion in overruling application for continuance for absence of witness.
    In a prosecution for assault to murder, where the defense was insanity, held not within discretion of trial judge to overrule an application for continuance on account of absence of a witness on the question of insanity where there was sufficient diligence and absent witness’ testimony was probably true, was material, and likely to change the result.
    Appeal from District Court, Walker County; J. A. Platt, Juuge.
    P. H. Roberts was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    A. T. McKinney, Jr., and M. E. Gates, both of Huntsville, for appellant.
    R. H. Hamilton, .Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for assault to murder Miss Ethel Sprott. It is a companion ease to No. 6218,231 S. W. 759, against the same appellant, wherein he was convicted for an assault with intent to murder his wife. The transaction detailed in that case discloses the facts in this one.

The defense was insanity. The first application for a continuance on account of the absence of the witness Parrott was presented and overruled. That the diligence appears sufficient was not controverted. The evidence of the absent witness bore upon the issue of insanity, which issue was strongly supported by facts and circumstances as well as the opinion of nonexpert witnesses.

In the companion case we declined to reverse on account of the absence of the same testimony, but in that case the record excluded any legal diligence to secure his attendance. In the case before us that the diligence required had been exercised was not contested. The testimony was manifest^ material to the only defensive issue presented. We find no basis for a conclusion that the testimony of the absent witness was not probably true; that is to say, there is no sufficient reason for assuming that he would not have recited the facts sot up in the application and given his opinion based thereon that the appellant was at times insane to a degree rendering him incapable of comprehending the distinction between right and wrong. The other evidence in the case rather discredits the idea that the witness would not have given the testimony. We think it cannot! be said, as a matter of law, that it would have had no effect upon the verdict. Upon the record, we are of the opinion that it was not within the discretion of the learned trial judge to overrule the application, and that in the light of the facts developed a new trial should have been awarded. Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627; Barlow v. State, 61 Tex. Cr. R. 64, 133 S. W. 1050; Webb v. State, 5 Tex. App. 596.

Upon the other points presented the record is in every essential sense like that in the companion ease, and for the reason therein stated are, in our opinion, without merit.

Upon the ground indicated, the judgment is reversed, and the cause remanded. 
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