
    BOOKOUT v. STATE.
    (No. 7513.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1923.)
    1. Criminal law <&wkey;1134(2) — Testimony considered in determining whether trial court abused discretion in refusing continuance and new trial for absence of witnesses.
    In determining whether the trial court has abused its discretion in the refusal of an application for continuance on the ground of absence of witnesses and in overruling a subsequent motion for new trial on that ground, the testimony of the absent witnesses and that given on the trial may be looked to.
    2. Criminal law <&wkey;'594(4) — Continuance for absence of material witness held erroneously refused.
    Where defendant moved for a continuance •on the ground of the absence of his wife, who was ill, and could not attend court, and it appeared that, if she would have been present, she would have given testimony material to the defense, the refusal of the continuance held error.
    3. Criminal law &wkey;>594(l), 917(2) — Refusal of continuance and new trial for absence of witnesses held error.
    Where a continuance was sought because of the absence of defendant’s father, who had left home before he knew of the indictment, and had no knowledge of the pending trial, and, if he had known thereof, would have been present and given material testimony, held, that it was error to refuse to continue the case and to refuse a new trial.
    4.-Criminal law <&wkey;784(l) —Where evidence circumstantial, it ‘is error to refuse a charge on the law of circumstantial evidence.
    Where there was evidence that defendant was discovered stirring something that looked like plaster of paris in the vicinity of a still, he claiming that he did not know of the presence of the still, but, having seen third parties run away from the scene, was merely investigating when the officers discovered him, held, that, the evidence being circumstantial, it was error to refuse a charge on circumstantial evidence.
    <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Frank Bookout was convicted of a felony, and he appeals.
    Reversed and remanded.
    Johnson & Waters, of New Boston, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Bowie county of a felony, ¿nd his punishment fixed at one year in the penitentiary.

Appellant was indicted on July 29th, arrested on August 4th, and his case called for trial August 10th. A continuance was asked because of the absence of appellant’s father, J. D. Bookout, and, of appellant’s wife. Process was issued for both of said witnesses on the 9th of August, and was returned duly served on Mrs. Bookout, but with a showing by the sheriff that J. D. Bookout was out of the county, and had gone to Paris, Tex. Said application for continuance stated the illness of Mrs. Bookout which prevented her from attending court, and supported that proposition by the accompanying certificate of a physician who certified that she was ill, and could not come. Appellant’s motion for a new trial, based in part on the refusal of said continuance, was accompanied by the affidavit of J. D. Bookout, father of appellant, who stated that he left home before he knew of the -indictment of appellant, and that he therefore could not know of the fact of the pending trial, and that had he known of same he would have been present. His testimony, in line with that stated in the application for continuance, as expected from him, was set forth in said affidavit. In solving the question as to whether the trial court has abused his discretion in the refusal of an application for continuance and in the overruling of a subsequent motion for new trial on that ground, the testimony of the absent witness or witnesses, and that given upon the trial, may be looked to.

For the state two officers testified that on a certain date they went down into a pasture belonging to and controlled by appellant’s father, J. D. Bookout, and at a certain point they came upon appellant who, as they state, was stirring the contents of a bucket seemingly containing a paste that looked like flour and water. When they commanded him to throw his hands up, they said he tried to get a pistol which was about his person. Upon going up to him they discovered two women near by, qne of whom was appellant’s wife and the other his cousin. They also admitted that appellant told them that he had come upon the still accidentally, and that some men ran away from it when he came up. Appellant’s cousin, a woman, testified that she had gone down in the pasture in questionvwith appellant and his wife from the- home of appellant’s father, and that before leaving the house appellant’s father handed to him a pistol, belonging to appellant, which appellant’s father said he had been trying to fix. This witness further testified as they were walking through the pasture they found a still, and that as they were talking about it the officers appeared and arrested the appellant. Appellant himself gave testimony in line with the above, saying that he did not know the still was there, and that when ■ they approached it some men ran away, and that he saw something in a bucket which excited his curiosity, and that he was poking it with a stick when the officers appeared and arrested him. He stated that the pistol had by him at that time was handed him by his father when he left the house; that it was his, and his father had been trying to mend it. It was averred in the application for continuance that Mrs. Bookout, the wife of appellant, if present, would have testified to the same things.

This was the first application for continuance. The witness had been served with process. Her absence on account of sickness was satisfactorily shown, and there can be no question but that her testimony was material to the defense. Juries are not apt to accord to one charged with crime entire credibility in his statement exculpating himself from the charge. Aside from the testimony of appellant, the only witness he had present to corroborate him was his cousin. If his wife had been present, she would have corroborated both. We think the case should have been postponed or continued to give the accused an opportunity to obtain said testimony. We are also of opinion that the application for Mr. Bookout, Sr., showed diligence, and that his testimony was material, and his absence being satisfactorily explained upon the hypothesis that he left home before the indictment was returned, and had no opportunity to learn of the pending trial in time to appear and give testimony, especially when accompanied by' his affidavit setting forth his evidence, should also have caused the granting of a new trial.

Appellant asked for a charge on circumstantial evidence, which was refused, and this action of the court is made the subject of a bill of exceptions. In our opinion the case was one of circumstantial evidence, and the charge should have been given. Appellant was present where there was a still upon which the manufacture of intoxicating liquor was in progress. The only thing he was seen to do was to stir some white looking paste in a bucket. He denied connection with the still. It is true that the still was in the pasture of appellant’s father, and that the white looking paste might have been plaster of paris, or othei^ substance used for stopping air passages around the place where the worm entered the boiler, and these, together with the actions of the appellant in attempting to draw, a pistol, might have led a jury to conclude that his testimony and that of his witnesses did not speak the truth, but this would not justify the court in not submitting the law applicable to the case as made by its facts.

For the errors mentioned, the judgment will be reversed, and the cause remanded.  