Cruz v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge. —

We said in our opinion that “When the facts as stated in the application for continuance are considered in connection with the evidence adduced and do not appear to be probably true, a new trial should not be granted.” This statement is vigorously assailed as denying to one accused of crime the right to have the jury determine the probable truth of the alleged absent testimony. We quote from sub. 6, Art. 608, C. C. P.:

“The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall…