Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 253

1875.1 DINKENS V. THE STATE. 253
Opinion of the Court.
tive requirements of the statute, prescribing the grounds for a
continuance, and what shall be sufficient for that purpose. The
Code provides that in cases of felony, after indictment found,
the State or defendant shall be entitled, on application to the
clerk of the court, to obtain an attachment for witnesses, etc.
(Article 2,907.) The Act of 1873 (p. 104) authorizes the clerk
or justice of the peace to issue subpoenas or attachments for
witnesses when a criminal case is pending, but we have not
been referred to any provision, and have found none, authorizing
the clerk to issue, or requiring the accused to obtain process
for witnesses before a bill is presented.
It is suggested that the testimony of the absent witness, in
view of the evidence on the trial, was immaterial and could
have availed nothing if introduced. We cannot determine
that such would have been the result. It might have produced
a conflict in the evidence, but it cannot be assumed in
advance that the jury would have rejected it as unworthy of
credit. Be that as it may, the accused should have been
allowed a reasonable time during the term of the court, or a
continuance for the term, to procure the attendance of the witness
and have the jury pass upon the evidence in connection
with the testimony offered by the prosecution. The case of
Wall v. The State, 18 Texas, 693, and Bruton v. The State,
21 Texas, 337, are not regarded as applicable to this case. In
neither was the absent testimony material, and the application for
continuance failed to show any legal ground to postpone the trial.
No exception appears to have been taken to the introduction
of evidence of the confessions made by the defendant.
The motion refers to a bill of exceptions, but if taken it is not
in the record. As the case will be reversed on the other ground,
it is sufficient to say in respect to another trial that before evidence
of a confession can be received, it must be shown that
it was freely made, without compulsion or persuasion, under
the rules prescribed by the Code, as the court in substance in-.
structed the jury.
Reversed and remanded.