Opinion
No. 86.
Decided October 27, 1909.
Local Option — Continuance — Surprise — Postponement — New Trial.
Where, upon trial of a violation of the local option law, the State's witness testified that certain persons were present at the sale of the alleged whisky, and witnessed the transaction, whereupon defendant made application for a postponement or a continuance of the case on account of surprise of the State's testimony, and that he expected to prove by the parties named by the State's witness that they were not so present and witnessed the transaction, which application was overruled, and it appeared in defendant's motion for new trial, by the affidavits of said persons named by State's witness, that neither of them witnessed the transaction as related by State's witness, a new trial should have been granted.
Appeal from the County Court of Montague. Tried below before the Hon. A.W. Ritchie.
Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
The opinion states the case.
Albert S. Phelps, for appellant. — Cited cases in the opinion. F.J. McCord, Assistant Attorney-General, for the State.
Appellant was convicted of violating the local option law. The State's witness Ward testified that he was in Sunset on the 25th of December, 1908, and was in George Powell's light plant and Jack Rankin and Bob Davis were both present while he was there; that appellant gave him a bottle of whisky; that he gave somebody $1.25 for it but did not remember whether he gave it to appellant or his brother Jack Rankin, but he thought he gave it to appellant; that he had been drinking that day and was drunk at the time. Dan Rankin testified that it is untrue that he ever met Ward in George Powell's light plant and that it was untrue that he ever sold him a bottle of whisky at any time. The parties went to trial and when this state of case developed appellant's counsel asked the court to permit him to withdraw his announcement of ready for trial on account of the absence of two witnesses, Jack Rankin and Bob Davis; that he was surprised at this testimony and was unaware of what the witness Ward would testify as to the purchase — the time and place, that he had gone to Ward and tried to ascertain what his testimony would be to the end that he might prepare his case for trial. Ward denied that appellant had gone to him and asked him about the matter. Application for continuance or postponement was made in which appellant states that he could prove by these two witnesses that they were not present at the time and on the occasion, and that no such transaction occurred. We are not stating the details of the application. The application was overruled and appellant convicted. As a part of the motion for new trial the affidavits of Davis and Jack Rankin are attached to it as exhibits. In these affidavits they swear most positively they were not present in the town of Sunset in George Powell's light plant and saw Dan Rankin or anybody else deliver to said witness a bottle of whisky or brandy or any other kind of a bottle, nor did they see Ward deliver to Rankin or anybody else a dollar or any other sum of money. They further state that no such circumstance occurred on December 25, 1908, or at any other time, and it is not true that they were ever in George Powell's light plant at said time or any other time when Ward and Dan Rankin were present. We are of opinion that under the circumstances of this case this application should have been granted. McNamee v. State, 97 S.W. Rep., 96; Sessions v. State, 98 S.W. Rep., 243; Blackburn v. State, 48 Tex.Crim. Rep., 87 S.W. Rep., 692; Gilford v. State, 76 S.W. Rep., 692; Cravens v. State, 103 S.W. Rep., 921; Casey v. State, 51 Tex.Crim. Rep., 102 S.W. Rep., 725; McKinney v. State, 55 S.W. Rep., 337.
The judgment is reversed and the cause remanded.
Reversed and remanded.