Willson, Judge.
John Coop was murdered by some one, at his home, at about half-past 8 o’clock on the night of the 30th of July, 1884, by being shot to death with a shot-gun. On the 9th day of December, 1884, the defendant was indicted for the murder, and on the 22d day of the same month the case was called for trial, when the State announced ready for trial, and the defendant applied for a continuance because of the absence of material witnesses, to wit, Hall, Thacker and Wilkins, which application was overruled. Thereupon the court proceeded to the arraignment of the defendant, and the organization of a jury to try the case, but, failing to get a jury out of the special venire summoned, the case was postponed until the 24th, and two hundred talesmen were ordered.
When the case was again called, on the 24th, the defendant presented a supplemental motion for a continuance, and also a motion ' to change the venue. The court declined to pass upon these motions when presented, and proceeded to organize the jury, which was completed on the 27th day of the month. After the jury was organized, the court considered the supplemental application for a continuance upon its merits, and overruled it; and also passed upon the motion for a change of venue, overruling the same upon the ground that it came too late, having been made after the State had announced ready for trial, and after the court was proceeding to organize a jury.
Defendant was convicted of murder in the first degree, and his punishment assessed at confinement for life in the penitentiary. He moved for a new trial, which motion was overruled, one of the grounds of said motion being that the court erred in overruling his applications for continuance, and another ground being that the court erred in overruling his motion for a change of venue.
I. In considering the applications for continuance, we think they should be regarded as one and the same. The supplemental application referred to and made the original application a part of the former, and was considered and acted upon by the court upon its [255]*255merits. They constituted together one application when entertained by the court, and will be so treated by this court.
IT. There was no direct evidence that the defendant committed the murder. No one witnessed the tragedy, and the deceased died in a few moments after being shot, and without making any declaration as to who did the shooting. It is a case of purely circumstantial evidence. The special defense interposed by the defendant was an alibi.
It appears from the evidence that a camp-meeting was in progress on the night of the murder, at a place distant from the place where Coop was killed, at least three and one-half miles by the nearest route. The time of the killing is not exactly fixed by the evidence, but it must have been about half after 8 o’clock. On that night the defendant accompanied a young lady to the camp-meeting, arriving there, she testifies, “ about or a little before dark,” and it was shown that the sun set on that day at two minutes past 7. He remained with this young lady until preaching began, which was about early candle-lighting, when he left her and was gone away from her until the preaching was over and the shouting had commenced, when he returned to where she was, and accompanied her home. The exact time of his return is fixed by the evidence at fifteen minutes past 9. During his absence from this young lady he was seen and spoken to by several persons at and about the place where the meeting was being conducted. There is, however, from the evidence, a short interval of time, perhaps near an hour, during which none of the witnesses who testified in the cause definitely located him at the camp-meeting. This interval of time was sufficient to have enabled him to ride to Coop’s, commit the murder, and return to the camp-meeting; and it covered the time when the killing occurred; that is, about half-past 8 o’clock.
In order, therefore, to make complete his defense of an alibi it was of vital importance to the defendant to prove his presence at the camp-meeting during this interval of time, and to prove the fact as strongly and conclusively as it might be possible for him to do. He proposed to make this proof by the absent witnesses, Wilkins and Thacker. By the witness Wilkins he proposed to prove that he, Wilkins, was present at the camp-meeting on that night, saw the defendant there from about 7 o’clock until 10 o’clock, and that defendant was within his view at said place during the whole of said time except at one time, and that he was out of witness’s sight at that time not longer than fifteen minutes; and that the particular time when he did not see the defendant was before [256]*256half-past 8 o’clock. And by Thacker he proposed to prove substantially the same facts. By Hall and Wilkins he also proposed to prove other material facts not necessary to be now considered.
Considering together the original and supplemental applications for continuance, they contain every statutory requisite, and show due diligence to obtain the testimony of the absent witnesses. The learned judge, in his explanations appended to the defendant’s bill of exceptions, says as to the witness Thacker that his residence was not stated in the application, and it could not therefore be determined whether the issuance of a subpoena for said witness to Coryell county was such diligence as the law required. In this statement the learned judge is mistaken, or the record before us is not correct; for in the application for continuance contained in this record it is stated that the witness Thacker resided in Coryell county, Texas.
We have seen that the facts which defendant in his application stated be expected to prove by the witnesses Wilkins, Hall and Thacker were material to his defense, and that due diligence had been used to obtain the testimony of said witnesses. As a first application for continuance it cannot be denied but that it was sufficient and, under the law as it aforetime was, must have been granted as a matter of right. (Austin v. The State, 42 Texas, 345; Peeler v. The State, 2 Texas Ct. App., 455; Sansbury v. The State, 4 Texas Ct. App., 99; Stephenson v. The State, 5 Texas Ct. App., 79; Tooney v. The State, Id., 163.)
But the act of April 14, 1879, which now appears as subdivision 6 of article 560 of the B,e vised Code of Criminal Procedure,, invests the trial judge with a discretion as to continuances which never before existed in the courts of this State, and this discretion is a very broad one, qualified only by the requirement that it be a sound one. But it is provided that, if the defendant be convicted, and it has appeared upon the trial that the evidence of the witness or witnesses named in the application is of a material character, and that the facts set forth in said application were probably true, a new trial should be granted. In other words, on the motion for a new trial, the application for a continuance is to be reconsidered in the light of the evidence that has been adduced upon the trial, and if, when viewed in this light, it appears that the testimony sought is material, and that the facts stated in the application are probably true, justice and the law demand that a new trial should be granted the defendant; the application having in other essentials met the requirements of the statute.
Thus, the motion for a new trial brings in review before the trial [257]
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Willson, Judge.
John Coop was murdered by some one, at his home, at about half-past 8 o’clock on the night of the 30th of July, 1884, by being shot to death with a shot-gun. On the 9th day of December, 1884, the defendant was indicted for the murder, and on the 22d day of the same month the case was called for trial, when the State announced ready for trial, and the defendant applied for a continuance because of the absence of material witnesses, to wit, Hall, Thacker and Wilkins, which application was overruled. Thereupon the court proceeded to the arraignment of the defendant, and the organization of a jury to try the case, but, failing to get a jury out of the special venire summoned, the case was postponed until the 24th, and two hundred talesmen were ordered.
When the case was again called, on the 24th, the defendant presented a supplemental motion for a continuance, and also a motion ' to change the venue. The court declined to pass upon these motions when presented, and proceeded to organize the jury, which was completed on the 27th day of the month. After the jury was organized, the court considered the supplemental application for a continuance upon its merits, and overruled it; and also passed upon the motion for a change of venue, overruling the same upon the ground that it came too late, having been made after the State had announced ready for trial, and after the court was proceeding to organize a jury.
Defendant was convicted of murder in the first degree, and his punishment assessed at confinement for life in the penitentiary. He moved for a new trial, which motion was overruled, one of the grounds of said motion being that the court erred in overruling his applications for continuance, and another ground being that the court erred in overruling his motion for a change of venue.
I. In considering the applications for continuance, we think they should be regarded as one and the same. The supplemental application referred to and made the original application a part of the former, and was considered and acted upon by the court upon its [255]*255merits. They constituted together one application when entertained by the court, and will be so treated by this court.
IT. There was no direct evidence that the defendant committed the murder. No one witnessed the tragedy, and the deceased died in a few moments after being shot, and without making any declaration as to who did the shooting. It is a case of purely circumstantial evidence. The special defense interposed by the defendant was an alibi.
It appears from the evidence that a camp-meeting was in progress on the night of the murder, at a place distant from the place where Coop was killed, at least three and one-half miles by the nearest route. The time of the killing is not exactly fixed by the evidence, but it must have been about half after 8 o’clock. On that night the defendant accompanied a young lady to the camp-meeting, arriving there, she testifies, “ about or a little before dark,” and it was shown that the sun set on that day at two minutes past 7. He remained with this young lady until preaching began, which was about early candle-lighting, when he left her and was gone away from her until the preaching was over and the shouting had commenced, when he returned to where she was, and accompanied her home. The exact time of his return is fixed by the evidence at fifteen minutes past 9. During his absence from this young lady he was seen and spoken to by several persons at and about the place where the meeting was being conducted. There is, however, from the evidence, a short interval of time, perhaps near an hour, during which none of the witnesses who testified in the cause definitely located him at the camp-meeting. This interval of time was sufficient to have enabled him to ride to Coop’s, commit the murder, and return to the camp-meeting; and it covered the time when the killing occurred; that is, about half-past 8 o’clock.
In order, therefore, to make complete his defense of an alibi it was of vital importance to the defendant to prove his presence at the camp-meeting during this interval of time, and to prove the fact as strongly and conclusively as it might be possible for him to do. He proposed to make this proof by the absent witnesses, Wilkins and Thacker. By the witness Wilkins he proposed to prove that he, Wilkins, was present at the camp-meeting on that night, saw the defendant there from about 7 o’clock until 10 o’clock, and that defendant was within his view at said place during the whole of said time except at one time, and that he was out of witness’s sight at that time not longer than fifteen minutes; and that the particular time when he did not see the defendant was before [256]*256half-past 8 o’clock. And by Thacker he proposed to prove substantially the same facts. By Hall and Wilkins he also proposed to prove other material facts not necessary to be now considered.
Considering together the original and supplemental applications for continuance, they contain every statutory requisite, and show due diligence to obtain the testimony of the absent witnesses. The learned judge, in his explanations appended to the defendant’s bill of exceptions, says as to the witness Thacker that his residence was not stated in the application, and it could not therefore be determined whether the issuance of a subpoena for said witness to Coryell county was such diligence as the law required. In this statement the learned judge is mistaken, or the record before us is not correct; for in the application for continuance contained in this record it is stated that the witness Thacker resided in Coryell county, Texas.
We have seen that the facts which defendant in his application stated be expected to prove by the witnesses Wilkins, Hall and Thacker were material to his defense, and that due diligence had been used to obtain the testimony of said witnesses. As a first application for continuance it cannot be denied but that it was sufficient and, under the law as it aforetime was, must have been granted as a matter of right. (Austin v. The State, 42 Texas, 345; Peeler v. The State, 2 Texas Ct. App., 455; Sansbury v. The State, 4 Texas Ct. App., 99; Stephenson v. The State, 5 Texas Ct. App., 79; Tooney v. The State, Id., 163.)
But the act of April 14, 1879, which now appears as subdivision 6 of article 560 of the B,e vised Code of Criminal Procedure,, invests the trial judge with a discretion as to continuances which never before existed in the courts of this State, and this discretion is a very broad one, qualified only by the requirement that it be a sound one. But it is provided that, if the defendant be convicted, and it has appeared upon the trial that the evidence of the witness or witnesses named in the application is of a material character, and that the facts set forth in said application were probably true, a new trial should be granted. In other words, on the motion for a new trial, the application for a continuance is to be reconsidered in the light of the evidence that has been adduced upon the trial, and if, when viewed in this light, it appears that the testimony sought is material, and that the facts stated in the application are probably true, justice and the law demand that a new trial should be granted the defendant; the application having in other essentials met the requirements of the statute.
Thus, the motion for a new trial brings in review before the trial [257]*257court, and before this court on appeal, the facts set forth in the application for continuance in connection with all the evidence in the case, and these facts and evidence are to be considered together in determining whether or not probable injustice has been done the defendant in compelling him to go to trial in the absence of the desired testimony. In so determining, the statute supplies the test by which the court is to be controlled. This test consists of answers to two questions, which are: 1. Is the testimony, as set forth in the application for continuance, of a material character; and 2. Are the facts stated in the application probably true? If both these questions can reasonably be answered affirmatively, the discretion of the court ceases, and the defendant is entitled to a new trial as a matter of right. Affirmative answers to these questions establish that the continuance should have been granted, and that probable injustice has been done him in refusing it.
In the case before us, as already remarked, the testimony sought is unquestionably of a material character. It bears directly upon the vital issue in the case, and, besides tending strongly to prove the alibi relied upon by defendant, tends to throw light upon other facts in evidence. The first of the test questions must be answered in the affirmative. How is the second question to be determined? Only, as we conceive, by considering the facts stated in the application, with reference to the facts developed by the evidence on the trial. In other words, does the evidence in the case render it improbable that the witnesses named in the application would testify to the facts which the defendant states he expects to prove by them; or does it appear that such facts, if testified to by them, are not probably true?
We will now examine the application as to the facts expected to be proved by the witness Wilkins, and compare the same with the evidence before us, and determine the question as to the probable truth of the application in this respect. It is stated that he expected to prove by Wilkins that he, Wilkins, was present at the camp-meeting on the night of the murder, and saw the defendant there from about 7 o’clock until 10 o’clock that night, and did not lose sight of him between said hours but once, which was before half-past 8 o’clock, and then only for not longer than fifteen minutes. How as to the evidence on the trial. It was proved that Wilkins was at the camp-meeting on that night from 7 o’clock until 10 o’clock, and was acquainted with the defendant. It was proved that defendant reached the camp-meeting in company with a young lady at about 7 o’clock, and took a seat beside her under the arbor, [258]*258and in a short time left her and stepped out from the arbor, and that, when he left, Wilkins took his seat beside the young lady, where he remained until defendant’s return. It was proved that •when defendant left the arbor he went to a lemonade stand about one hundred and fifty or two hundred yards distant from the arbor, and remained at the stand about fifteen minutes, and then walked back to within a short distance of the arbor, and sat down on the ground and talked about fifteen minutes, and then got up and walked towards the arbor. Several witnesses testified to having seen him in the vicinity of the arbor at different places and times after he left his seat beside the young lady. There is no direct evidence that he was further away from the arbor on that night than the lemonade stand, from the time he went to the arbor to the time he left it in company with the young lady.
Is there anything in this evidence inconsistent with the truth of the facts stated in the application ? Does this evidence render it improbable that Wilkins would testify as the application alleges be would; or that such testimony would not probably be true? The learned trial judge in his explanation to the bill of exceptions says: “ The testimony sought to be obtained from Wilkins is entirely disproved by that of Miss Georgia Large, who testified that defendant went with her to the meeting; that when they arrived the defendant went at once with her under the arbor, sat down by her side, and remained until preaching began, when he at once arose and left and did not return until the preaching was over and the shouting was going on, and that when the defendant left her side Wilkins at once took his seat, and remained by her side until the defendant returned.” We do not think the learned judge is justified in his conclusion that the testimony of Miss Large entirely disproves the facts expected to be proved by Wilkins. To our minds it is not at all improbable that Wilkins may have had the defendant in his view while Miss Large did not. Wilkins may have seen him from the time he left the side of Miss Large until his return, and yet Miss Large may not, during this time, have noticed his presence. We perceive nothing contradictory or conflicting in the testimony of Miss Large and the facts expected to be proved by Wilkins. Neither would disprove the other.
But, suppose the learned judge’s view of it is correct, and that the testimony of Miss Large and the proposed testimony of Wilkins are in direct conflict, and incapable of being reconciled, are we to conclude that Miss Large is infallible, and that she alone could not be mistaken as to the facts? By what rule of reason or of law are [259]*259we to say that her testimony entirely disproves the testimony of another witness equally as credible, perhaps, as she is, and in as favorable a position as she was to observe and to know the facts testified about? We might with the same reason say that the testimony of some one witness in the case entirely disproved that of Miss Large.
We think the fair, just and reasonable way to solve this question is to consider all the evidence in the case, not particular parts of it, and if, when thus weighed and considered, it is not inconsistent with the truth of the facts set forth in the application, it should be held that those facts are probably true; and where there is a reasonable doubt in the mind of the court upon the question, the defendant should have the benefit of such doubt, as he would have in a trial before a jury. After a careful consideration of all the evidence before us, we must answer the second test question of the statute, as we did the first, affirmatively; and hold that the trial court erred in not granting the defendant a new trial upon the ground that his application for a continuance had been improperly denied.
We have not discussed in this connection the facts expected to be proved by the other absent witnesses Hall and Thacker, because it was sufficient for our purpose to consider the application only as to the witness Wilkins. We will say, however, that in our opinion the facts stated in said application, as expected to be proved by said witnesses Hall and Thacker, are not only of a material character, but are not unreasonable or improbable when compared with the evidence on the trial.
III. In regard to the ruling of the court upon the defendant’s motion to change the venue, we will say that the question as presented in this case is not free from doubt and difficulty, and, as it is not necessary that we should now determine it, and as it may not arise again either in this or any other case, we prefer and think it best to not decide it.
IY. We do not think it was error to admit the answer of the witness Abrahams to the question in regard to the demeanor of the defendant upon his return to the camp-meeting. This answer was, “he was excited.” In'Alabama such an answer has been held inadmissible evidence. (Gassenheimer v. The State, 52 Ala., 314; McAdory v. The State, 59 Ala., 92.) But in other States such evidence has been held admissible. (Culver v. Dwight, 6 Gray, 44; State v. Hudson, 50 Iowa, 157; Bromwell v. The People, 38 Mich., 736; People v. Lilly, Id., 270.) Mr. Wharton says: .“When the [260]*260opinion is the mere short-hand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it was based.” (Whart. Cr. Ev., § 458.) And he further says: “ Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury.” (Id., § 459; Conner v. The State, 6 Texas Of. App., 455.) The object of all examinations in judicial tribunals is to elicit truth; and there are many cases where the form of questions and the manner of examination must be left to the discretion of the trial judge. Eo injustice can ordinar.ly be done by admitting such evidence, because it is not likely to prevail against a cross-examination or facts proved by other witnesses inconsistent with it.
V. As to the question propounded to defendant’s witness Miller, by counsel for the State, about a gun, it was immaterial, as was subsequently shown by the other evidence in the case, and could not have had any effect upon the minds of the jury.
VI. We have carefully considered the charge of the court in the light of the objections made to it by counsel for defendant, and in our opinion it is not obnoxious to those objections. It appears to us to be a very full, fair and correct charge in all respects, presenting to the jury in a logical and plain way the law applicable to the evidence. There may be some slight inaccuracies in it, but there are none of a character calculated to confuse the minds of the jury, or to mislead them from a correct view of the law.
Because, in our opinion, the record shows that the defendant under the law is entitled to a new trial, the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered May 20, 1885.]