Tippett v. State , 42 Tex. Crim. 609 ( 1901 )

The judgment was affirmed at a previous day of this term, and now comes before us on motion for rehearing. Appellant in his motion for rehearing calls our attention to a mistake in the original opinion in reciting the facts bearing on the question of diligence. We said in the original opinion "that it was not shown that the absent witness obeyed the subpoena in the interim between the 18th of May, 1900, and the time of the trial, to wit, the January term, 1901." A more careful inspection of the record discloses the fact that appellant does recite "that said witness, in obedience to said process, has been in attendance upon this court at each and every term thereof until to-day." However, it does not occur to us that this affects the disposition of the case, or appellant's motion for continuance and new trial based thereon. The bill does not show that the witness Duncan was examined on the point upon which it was proposed to impeach him by the absent witness. He may have admitted the conversation and have explained it. But if we consider the matter as was done in the original opinion, that a proper predicate was laid for the impeaching testimony, yet, as said in the original opinion, a continuance will not ordinarily be granted for the purpose of procuring testimony of an impeaching character, and we see nothing in this case to take it out of the general rule.

As to the other proposition, which appellant strenuously and ably insists should reverse the case, as stated in the original opinion, we think the court sufficiently charged his defense, and we have nothing to add to what was then said. The motion for rehearing is overruled.

Motion overruled.