Belton v. State , 110 Tex. Crim. 142 ( 1928 )

It seems plain that if only appellant and those closely related to him, gave testimony as to his purchase of the property which he was charged with stealing, such testimony would be vastly more apt to be discredited and rejected by the jury because of its apparent taint of self-interest, than if the same facts were sworn to by parties unrelated. An application of this reasoning makes plain the correctness of our holding that it was error to overrule the application for continuance to get apparently disinterested witnesses who would testify to the same facts as did appellant and his wife, viz: that he purchased the property claimed by the State to have been stolen by him.

We think the trial court without power to pass on the truth vel non of the absent testimony when it is made to appear that an affidavit of the absent witness or witnesses was appended to the motion for new trial, and that in such affidavit said absent witness swore that if present he would have testified to the facts attributed to him in the application for continuance. White v. State, 90 Tex.Crim. Rep.; Mathason v. State, 229 S.W. Rep. 548.

Believing the case correctly decided in the original opinion, the motion for rehearing will be overruled.

Overruled.