
    TUBB v. STATE.
    (No. 11665.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    1. Criminal law @=3595(4) — Refusal of continuance held error, where witness’ affidavit, attached to motion for new trial, substantiated application and showed defendant kept no whisky at store at time of alleged sale.
    Refusal of continuance to secure testimony of witness absent on account of sickness, held error, where defendant used due diligence to secure her presence, and where witness’ affidavit, attached to motion for new trial, substantiated application for continuance and showed that witness worked at defendant’s place of business, that he kept no whisky there, and that defendant did not come into his store to secure whisky on occasion testified to by state’s witnesses.
    2. Criminal law @=>917(2) — New trial should be granted for refusal of continuance If diligence is shown and absent testimony might produce different result.
    If diligence is shown and absent testimony appears material and probably ti;ue and is of such character that a different result might be produced at another trial, new trial should be granted for refusal of continuance.
    3. Criminal law @=>959 — Trial court has no discretion to determine truth of absent testimony shown by affidavit, attached to motion for new trial, which substantiates application for continuance.
    If absent witness makes affidavit that if present he would have sworn to the facts stated in the application for continuance, and such affidavit is attached to motion for new trial, trial court has no discretion in ruling on motion to determine probable truth of such testimony, notwithstanding general rule that trial judge has discretion to determine whether absent testimony is probably true.
    4. Jury @=>131 (4) — Refusal to permit examination of jury panel as to whether they had heard previous case against defendant’s son for same offense held error (Const, art. I, § 10; Code Cr. Proc. 1925, art. 3).
    In prosecution for selling liquor, refusal to permit interrogating of jury on voir dire examination as to whether they had heard testimony in argument in case against defendant’s son, tried on the preceding day and involving same offense, held error under Const, art. 1, § 10, and Code Cr. Proc. 1925, art. 3, as infringing right to examine jurors for purpose of exercising peremptory challenges, where defendant expected to prove jurors’ opinion that whisky was being sold at defendant’s place of business.
    5. Criminal law @=>641(1) — Defendant has right to have counsel examine jurors individually (Const, art. I, § 10; Code Cr. Proc. 1925, art. 3).
    Right of defendant to appear by counsel is guaranteed by Bill of Rights and carries with it the right of counsel, within reasonable limits, to examine each juror individually in order that he may prepare himself for peremptory challenges under Const, art. 1, § 10 and Code Cr. Proc. 1925, art. 3.
    Commissioners’ Decision.
    Appeal from District Court, Coleman County ; J. O. Woodward, Judge.
    C. R. Tubb, Sr., was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Baker & Baker, of Coleman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for three years.

The state’s testimony was to the effect that appellant sold a pint of whisky- to Burke Weeks and Marcus West. Appellant ran a grocery store and filling station. Being approached by the witnesses with the request that he sell them whisky, appellant went into his store and came back with a paper sack in his hand which contained whisky. The witnesses testified that the sale occurred about the 1st day of January, 1927.

Appellant denied .that he sold any whisky to the parties, and asserted that he kept no whisky in his place of business. • His testimony was supported by that of his son, who said he was present on the occasion of the alleged sale. It was further shown by the testimony of appellant that he, his son, Alma Rose Brun-son, and her mother lived in the back end of the store and that Alma Rose Brun'son worked in the store and waited on customers.

Appellant complains of the action of the court in overruling his first application for a continuance. His motion for a new trial was based in part on the action of the court in overruling said application. It appears that appellant used due and sufficient diligence to secure the presence of the witness Alma Rose Brunson, who had been duly served with process, and, as shown by the certificate of a physician, was' unable on account of illness to attend court. Appellant alleged in his said application for a continuance that he expected to prove by the absent witness that she lived in his place of business at the time of the alleged sale and was familiar with all of the articles kept therein; that she knew of her own knowledge that appellant kept no whisky there at that time. Attached to the motion for a new trial was the affidavit of the witness wherein she stated in substance that she lived in appellant's-place of business, worked in the store, and was familiar with the articles kept therein; that appellant kept no whis-ky there during the time the alleged sale was made; and that he did not come into the store and secure whisky on the occasion testified to by the state’s witnesses.

The absent testimony was material, and in our opinion, viewed in the light of the entire record, is of such character that it might have produced a different result had a new trial been granted.

It is the rule that if diligence is shown and the absent testimony appear material and probably true and is of such character as that a different result might be produced thereby on another trial, that the new trial should have been granted. White et al. v. State, 90 Tex. Cr. R. 584, 236 S. W. 745, and authorities cited.

The judicial discretion rests with'the trial judge in determining, in passing on the motion for a new trial, whether or not the absent testimony is probably true in view of all the evidence heard during the trial. However, if the absent witness makes affidavit that if present he would have sworn to the facts stated in the application for a continuance, and such affidavit be attached to the motion for a new trial, then the discretion of the trial judge to determine the probable truth of such testimony does not operate. White v. State, supra; Cruz v. State, 100 Tex. Cr. R. 188, 272 S. W. 486. It follows that the discretion of determining the probable truth of the absent testimony did not operate in the instant case.

Bill of exception No. 2 presents the following occurrence: A part of the jury panel from which a jury was chosen had theretofore sat in the trial of C. R. Tubb, Jr., the son of appellant, the result of the trial being that appellant’s son was convicted on a charge of selling intoxicating liquor to one J. E. Harris. On the trial of appellant’s son -the witness Harris testified that the whisky which he purchased came from the place of business of C. R. Tubb, Sr., appellant herein. In the instant trial the state’s testimony showed that the whisky alleged to have been sold came from appellant’s place of business. In interrogating the jury on their voir dire examination for the purpose of laying a proper predicate upon which to base peremptory challenges, appellant asked the entire panel if they had heard the testimony and argument in the case against his son, C. R. Tubb, Jr., tried on the day next preceding the instant trial. The district attorney objected to the question on the ground that it was irrelevant and immaterial in that the charge against the son of appellant was a separate and distinct transaction. Appellant states in his bill of exception that he would have proven by the jurors who sat in the trial of his son that they had an opinion that O. R. Tubb, Sr., appellant herein, was selling whisky at the same place where the state contended that his son had sold whisky. He further states in his bill of exception that he expected to prove by the remainder of the panel that they heard the argument during the trial of his son and were of the opinion that whisky was being sold in appellant’s place of business. Appellant exhausted his peremptory challenges, but was nevertheless forced to take objectionable jurors.

The question was proper. The learned trial judge fell into error. The right to appear by counsel is guaranteed by the Bill of Rights, and carries with it the right of counsel, within reasonable limits, to examine each juror individually in order that he may prepare himself for the peremptory challenges allowed appellant by statute. Article 1, § 10, Constitution of Texas; Article 3, C. C. P. 1925; Holland v. State, 107 Tex. Cr. R. 582, 298 S. W. 898; Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267.

For the errors discussed, the judgment is 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. 
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