White v. State , 6 Tex. Ct. App. 476 ( 1879 )

Winkler, J.

This is an appeal from a judgment of conviction for theft of a gelding.

When the case was called for trial, the defendants — there-being two before the court — applied for a continuance on account of the testimony of one John Cross, averred to be a resident of Hood County. They alleged in their affidavits for a continuance that, as soon as they could procure counsel to represent them in the case, which they say was done within a very few days after the finding and service of a copy of the indictment against them, and which, they say, was served on September 6, 1878, they applied for an attachment for the witness. This, they say, was done on September 12, 1878, and that on that day the clerk issued, an attachment for the witness, and that they are informed and believe that the clerk mailed it to the sheriff of Hood. County, and that the attachment has not been returned.

The court overruled the application for a continuance.. The defendants took a bill of exceptions to the ruling, and made it a ground of complaint in the motion for a new trial. It is also assigned as error. The judge, in giving a bill of exceptions to the ruling on the application for a continuance, says he overruled it because no due diligence is shown to procure the testimony, nor any excuse for the lack of diligence. It will be noticed that no attempt is made to procure the testimony until September 12th, when, it is alleged, the attachment was applied for and its issuance procured; nor is there any attempt to show, either that they did not know of the importance and materiality.of the witness’s evidence at an earlier day than as stated in the affidavit, or that they had made any effort to inform themselves. They do not state definitely, but show inferentially, that they knew, from a very few days after the date of the alleged theft, where the witness resided. This is shown by the statement as to where they last saw the witness, and where they say they never saw him any more until they were arrested, “ when they learned he lives now in Hood County, Texas.”

The testimony adduced on the trial shows that the defendants were arrested very soon after the date of the theft, which is alleged to have occurred on April 21, 1878. It is unreasonable' to suppose that, if they really expected to make proof of the facts they say they expected to do by this witness, they, being under arrest, charged with the theft, should not have made use of the utmost diligence known to the law, in order to be certain of his testimony ; or, if they had been prevented from employing such diligence, that they would not have so stated. There are inconsistencies and insufficiencies in other respects, which it is not necessary to discuss.

It is competent to look into the testimony adduced, not to test the sufficiency of the application for a continuance, because this had to be passed upon before the court had heard the other testimony, but in order to determine whether a new trial should on that account have been granted, which had to be passed on after the other testimony in the case had been heard. Cooper v. The State, 19 Texas, 449. In Cooper’s case, cited by counsel for one of the appellants, the court looked to the facts, in considering the motion for a new trial, in order to determine that a new trial should have been granted; and, on the authority of that case, we make the same rule in order to determine that a new trial should have been refused, and was properly refused. Still, it is not indispensable, by any means, that we should resort to this. The application, when tested by itself, shows a want of diligence to procure the testimony; and we are of opinion that the court did not err, either "in refusing the application for a continuance or in overruling the motion for a new trial.

Counsel for the appellant cites some authorities in order to show that a continuance should have been granted. The case of Trevinio v. The State, 1 Texas Ct. App. 72, is perhaps as strong as any in support of his position. In that case, the defendant was indicted June 29, 1875 ; was arrested and confined in jail on the same day the indictment was found; and, on the day following, attachment was issued "for his witness ; and on July 6, 1875, the affidavit was made for a continuance. In respect to the materiality of the witness, the difference was even greater in favor of the defendant, in that case, than on the question of diligence.

We do not deem it important to discuss any other question raised on the motion for a new trial. We have examined the whole case as presented in the record before us, and find nothing which would warrant an inteference with the verdict and judgment.

The judgment of the District Court is affirmed.

Affirmed.