
    HARGROVE v. STATE.
    (No. 4477.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    Criminal Law c§=^>945(2) — New Trial — Absent Witnesses.
    In a prosecution for unlawfully carrying knucks, in which the evidence was conflicting as to whether defendant had knucks on his person as charged, it was error to overrule defendant’s motion for new trial to procure the attendance of witnesses who would testify that they were personally present at the difficulty, and would swear positively that the defendant did not at that time have knucks; plaintiff having used all' proper diligence to procure the attendance and testimony of such witnesses.
    [Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 2324^-2327.]
    Appeal from Hopkins County Court; T. J. Tucker, Judge.
    Ben Hargrove was convicted of unlawfully carrying knucks, and he appeals.
    Reversed and remanded.
    J. A. Dial and G. H. Crane, both of Sulphur ■Springs, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for unlawfully carrying knucks, with the lowest punishment assessed.

It was a sharply disputed issue whether appellant had on his person knucks at the time he was charged therewith. The state introduced several witnesses, most of whom, if not all, admitted hostility and- ill will against appellant. They testified positively that appellant did have on his person knucks at the time charged. The appellant disputed this pointedly, testifying positively that he had no knucks at the time, nor at any other time. He had some witnesses, who were present and witnessed the altercation, who testified that they were in'a position to see, and did see, and that they did not see appellant with knucks at the time the state’s witnesses testified he had them. Their testimony was not positive and direct that he did not at that time have knucks, but the effect ■of it might be that he did not.

The appellant had used all proper and necessary diligence to secure the attendance .and testimony of two witnesses, Jack Sparks and Elmer Campbell, who he alleged in his motion for a new trial in substance would testify that they were personally present at the time of said difficulty and saw what occurred, and would swear positively that he (appellant) did not at the time have knucks. 'This testimony was very material under the circumstances. At the previous term, when his witness Sparks was present, the state continued the case. We cannot say that the .jury would have convicted if he had had the testimony of these two witnesses, or even one of them. It may or may not have done so. At least, under the circumstances, he was entitled to a continuance to procure their testimony, and the court erred in overruling his motion for a continuance, or rather in overruling his motion for a new trial because thereof, for which error the judgment must be reversed.

Reversed and remanded.  