Eversole v. State , 106 Tex. Crim. 577 ( 1927 )

Appellant complains of our opinion on this rehearing solely because we upheld the action of the lower court in refusing his application for a continuance. He cites the case of Roquemore v. State, 114 S.W. 140. We perceive no contradiction at all between the holding in the Roquemore case and the instant case. Appellant asked for a continuance because of the absence of certain witnesses. The continuance was refused. The motion for new trial was based in part on the refusal of the continuance. The motion for new trial was refused. This was complained of as error. In order to determine the question as to whether it was error, we look to the record. There is nothing in the record leading us to believe that the witnesses named in the application for continuance were present when he says they were, or that they would have given the testimony stated by appellant as expected of them. In such case the trial judge has discretion, and unless there be something in the record to lead us to believe that his refusal of the motion for new trial was an abuse of that discretion, we will uphold his action.

Believing the decision announced in our original opinion correct, the motion for rehearing is overruled.

Overruled.