
    TUBB v. STATE.
    (No. 11664.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    1. Criminal law <§=>595(4) — Refusal of continuance held error, where absent witness’ affidavit attached to motion for new trial stated she was present and no whisky was sold as alleged.
    In prosecution of defendant, running grocery and filling station business, for sale of intoxicating liquor, refusal of continuance on account of absence, through, illness, of witness who lived at defendant’s place of business and assisted him in waiting on trade, held error, defendant having used due diligence, where witness’ affidavit attached to motion for new trial substantiated facts stated in application for continuance and recited that defendant kept no whisky on the premises and that witness was present at time of alleged sale and knew that no sale of whisky took place.
    2. Criminal law <§=>917(2) — Refusal of continuance requires new trial if diligence was shown and absent testimony might produce different result.
    If, on defendant’s motion for new trial on ground of refusal of continuance, diligence is shown and absent testimony appears material ■and probably true and is of such character that different result might be produced by another trial, new trial should be granted.
    3. Criminal law <@=>959 — Court has no discretion to determine truth of absent testimony where witness’ affidavit on motion for new trial substantiates application for continuance.
    While judicial discretion rests in trial judge in determining whether absent testimony is probably true in view of all of evidence beard during trial, trial judge has no discretion to determine probable truth of such testimony, if absent witness makes affidavit that if present he would have sworn to facts stated in application, and such affidavit is attached to motion for new trial.
    Commissioners’ Decision.
    Appeal from District Court, Coleman County; J. 0. 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. .

Appellant ran a grocery and filling station business near the town of Coleman. Appellant, his son, Alma Rose Brunson, and her mother lived in the back end of the store. Alma Rose Brunson worked in the store and waited on customers. The state’s witness D. P. Stacey was at appellant’s place of business at about 10 o’clock in the morning on April 4th, 1927, for the purpose of endeavoring to sell appellant an automobile. Said witness testified that on the occasion mentioned he bought a pint of whisky from appellant. He stated that appellant went into the store and brought the whisky to him.

Appellant denied that he sold the witness Stacey any whisky and asserted that he kept no whisky in his place of business. His testimony was supported by that of his son, who stated that he was present on the occasion testified to by the state’s witness and that appellant at that time had no whisky in his store and did not sell the witness any whisky.

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 his said application for a continuance. It is disclose^ by the application 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. It was alleged in the application for a continuance that appellant expected to prove by the absent witness that at the time of the alleged sale of whisky she (the witness) was living at appellant’s place of business and that she knew of her own knowledge that at the time of the alleged sale appellant had no whisky in his place of business and did not make a sale of whisky to Stacey on the occasion in question. Attached to the motion for a new trial was the affidavit of the witness where she stated in substance that at the time of the alleged sale of whisky by appellant she was living in his place of business, assisting him in waiting on his trade, and was familiar with all of the articles kept in the store and in his apartments; that appellant kept no whisky in said store or in his apartments'; that she, the witness, knew the state’s witness Stacey and remembered the occasion of the presence of said witness at appellant’s place of business; that on the occasion in question if appellant had sold whisky to Stacey she was in a position to have known it, as she was present, and that no such sale of whisky was made during the time she was present.

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.

Believing that the learned trial judge fell into error in refusing to grant appellant’s first application for a continuance and in overruling his motion for a new trial, the judgment is reversed and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Oourt of Criminal Appeals and approved by the court. 
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