Opinion
No. 12784.
Delivered November 27, 1929.
1. — Continuance — Absent Witness.
Application for continuance showed that absent witness who was sick and who had been timely subpoenaed would testify that he was sixty-three years old, in delicate health, was under the care of a physician who had prescribed whiskey and that he had purchased the whiskey which was found by the officers; that he was unable to take the whiskey home and directed it left with appellant; that it was purchased for medicinal purposes. The motion should have been granted.
2. — Motion for New Trial — Practice.
Where affidavit of the absent witness is attached to motion for new trial showing that he would testify as set out in his application for continuance, the trial court is deprived of the discretion ordinarily vested in him to judge of its probable truth in the light of the entire record.
Appeal from the District Court of Wood County. Tried below before the Hon. J. R. Warren, Judge.
Appeal from a conviction for unlawful sale of intoxicating liquor, penalty two years in the penitentiary.
The opinion states the case.
Jones Jones of Mineola, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Offense, the unlawful sale of intoxicating liquor; penalty, two years in the penitentiary.
Both the facts and legal issues of this appeal are identical with those of Williams v. State, No. 12773, this day decided. Appellant was charged with the unlawful sale of intoxicating liquor to one Grover Wilson. This sale was testified to by Wilson, after which appellant introduced three witnesses who claimed to be present and who denied that such sale was made. Thereupon the State placed raiding officers on the stand and made proof of a raid of appellant's premises by them, following the above sale, and the finding of seventeen pints of whiskey and a half gallon jar, as set out in the opinion in Williams v. State, No. 12773, already referred to.
Motion for continuance was made on account of the absence of W. W. Williams, which was identical with that discussed in the opinion last mentioned. For the reasons pointed out in said opinion, the Court's action in refusing this continuance was erroneous.
The judgment is reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.