Where appellant had used due diligence to secure the attendance of an absent witness, whose testimony was vitally material to his defense, and attached to his motion for a new trial the affidavit of said witness, which affidavit in effect shows that the witness would have given the testimony set out in his motion for a continuance, it was error to refuse the continuance, and to refuse him a new trial. Following Battle v. State, 279 S.W. 842, and other cases cited. Appeal from the District Court of Collingsworth County. Tried below before the Hon. R. L. Templeton, Judge.
This being the case, it becomes our duty to order a reversal. Dyer v. State, 83 S.W. 192; Pearson v. State, 120 S.W. 1004; Mansell v. State, 182 S.W. 1137; White et al. v. State, 236 S.W. 745; Turman v. State, 274 S.W. 593; Battle v. State, 279 S.W. 842; Tubb v. State, 5 S.W.2d 150; Burns v. State, 8 S.W.2d 157. The judgment is reversed and the cause remanded.
Mathason v. State, 89 Tex.Crim. R., 229 S.W. 548 and cases cited therein. White v. State, 90 Tex.Crim. R., 236 S.W. 745; Cruz v. State, 100 Tex.Crim. R., 272 S.W. 486; Fulton v. State, 102 Tex.Crim. R., 277 S.W. 651; Battles v. State, 103 Tex. Crim. 75, 279 S.W. 842; Marberry v. State, 106 Tex. Crim. 106, 291 S.W. 232. The judgment must be reversed and the cause remanded and it is so ordered.
All of the statements in the affidavit to the effect that appellant was a practicing physician and experienced in the treatment of eyes were in direct refutation of the state's contention, and the affidavit being filed in connection with the motion for new trial, and supporting the allegations in the motion for continuance, and bearing on appellant's defense, it was not for the trial court to say whether said affidavit was true or false and the appellant was entitled to have the jury pass on this issue. Terry v. State, 272 S.W. 466; Cruz v. State, 272 S.W. 486; Battle v. State, 279 S.W. 842; Marberry v. State, No. 10455, decided by this court on February 2, 1927, yet unreported. In bill No. 15 it is contended that the court erred in admitting in evidence the leather case, together with the vial and medicine dropper found therein, taken from appellant's car because the deputy sheriff, while standing by appellant's car, raised up the case before a search warrant had been obtained authorizing a search of said car, which was in violation of the Search and Seizure Law.