
    Frank Stephenson v. The State.
    CoNTnnrAjrcB. — Upon complying with the statutory requirements, the applicant is entitled to a first continuance as a matter of right.
    Appeal from the County Court of Hays. Tried below before the Hon. S. Fisher, County Judge.
    
      Hutchinson & Franklin, for the appellant.
    
      George McCormick, Assistant Attorney-General, for the State.
   Ector, P. J.

The only question we propose to notice in this case is the action of the lower court in overruling defendant’s application for a continuance. This was the first application made by the defendant for a continuance. It stated all that is required on such applications by article 2987, Paschal’s Digest.

The bill of exceptions taken to the refusal of the court to grant the continuance says that the application for continuance was overruled “ because it did not state that the defendant knew of no other witness by whom he could prove the same facts, and because it did not exclude the conclusion that there was no other witness whose testimony might have been obtained, by whom the same facts could be proved.”

No question was made as to the materiality of the evidence, or that the application did not comply with the requirements in other respects. The application shows that the evidence sought was material; states the name of the witness by whom he could prove the facts alleged by him ; that the witness resided in Hays Couiity; that a subpoena had been issued, on his application, and been served on the witness, giving the date of the issuance and of the service of the subpoena,, clearly showing sufficient and due diligence. And the further statement is made that the witness was not absent by the procurement or consent of the defendant, and that the application was not made for delay. Nothing further could be required of the party on the first application for a continuance. The statute makes provision for subsequent applications, and adds other requisites which are not required on the first application. Swofford v. The State, 3 Texas Ct. App. 76; Austin v. The State, 42 Texas, 345 ; Shackleford v. The State, 43 Texas, 138.

The affidavit was a compliance with the law, and the continuance should have been allowed. For this refusal, the judgment is reversed and the cause remanded.

Reversed and remanded.  