Richardson v. State , 156 Tex. Crim. 513 ( 1951 )

MORRISON, Judge.

The offense is driving while intoxicated; the penalty, a fine of fifty dollars.

There is no contention that the facts do not support the conviction.

Appellant’s two bills of exception complain of the trial court’s failure to grant his first motion for continuance. They may be considered together.

An examination of the record shows that the information was filed on December 30, 1950. Appellant applied for a subpoena for the missing witness on March 29, 1951. The trial was held on the 3rd day of April. The day following the issuance of the subpoena; to wit, on March 30, 1951, the sheriff made his return thereon, showing that he had not served the same because the witness sought was in the Army at Randolph Field. This, we think, was sufficient notice to appellant that the witness was not in Lubbock County and might be found in Bexar County. Under the authority of Fletcher v. State, 69 Tex. Cr. R. 135, 153 S. W. 1134, it then became the duty of appellant to have a subpoena issued to the county where the witness may have been found. This is not shown to have been done.

Appellant’s duty as to diligence to procure the witness began when he was arrested and continued up until the close of the testimony. Hogue v. State, 68 Tex. Cr. R. 536, 151 S. W. 805, and cases cited.

It may be further noted that no affidavit of the missing witness is attached to the motion for continuance or brought forward in any motion for new trial. For the rule in such cases see Hawkins v. State, (Page 122 of this volume), 238 S.W. (2d) 779.

Because of a failure to show diligence, the judgment of the trial court is affirmed.