Defendant’s statement as to what Re expected to prove by the four absent witnesses for whom his •continuance was sought, is in all essential particulars corroborated by the witness Forehand, who testified in his behalf at the trial. To our minds the statement does not appear either improbable or untrue. As to diligence used by the defendant to procure their attendance—the indictment was found on the third of June, attachment for the witnesses was sued out on the tenth, went into the hands of the sheriff of Kimble county on the *123twelfth, and was returned on the fourteenth. When filed in the Llano district court is not stated, but from the distance it had to travel we suppose it would take at least a day or so; say, then, it was filed in court on the sixteenth. The trial w;as on the ■eighteenth, two days after. Whilst defendant might have applied for and obtained another attachment, we can not say, under all the circumstances, that his failure to do so shows an utter want of diligence.

But, aside from this, if the action of the court in overruling the application was the exercise of that “sound discretion” contemplated by the statute (Code Crim. Proc., Art. 560, subdiv. 6; Harris v. The State, 18 Texas Ct. App., 287), still the statements were entitled to be weighed a second time by the court, in connection with the evidence, when the court was called upon to pass upon the motion for a new trial. Defendant’s witness had testified that defendant had bought the animal charged to have been stolen in Kimble county, and he named other parties who were present, three of whom were the same parties mentioned by defendant in his application. The statement does not appear to us either improbable or untrue, and in view of the facts we •are of opinion the defendant was entitled to a new trial, and that it was error to overrule his motion.

Several other bills of exception appear in the record, but the matters contained in them will not be discussed, since in all likelihood the same questions will scarcely arise upon another ■trial.

Because the court erred in refusing defendant’s motion for a mew trial, the judgment is reversed and the cause is remanded.

Reversed and remanded.