Trotti v. State , 135 Tex. Crim. 196 ( 1938 )

Appellant, in her motion for a rehearing, earnestly insists that we erred in our original opinion by holding that the trial court committed no error in overruling her application for a continuance because it did not appear from the application that appellant had used proper diligence to obtain the attendance of the absent witness.

In her motion for a new trial, she complained of the action of the court in overruling her application for a continuance, but no affidavit by the absent witness is attached to the motion showing that the witness, if he had been present, would have given testimony material to her defense; nor has she satisfactorily accounted for her failure to obtain such affidavit. See LaFitte v. State, 54 S.W.2d 133. Under the circumstances, the trial court could have reached the conclusion that the absent witness would not have testified as claimed by her. It appears from the order of the court overruling the motion for a new trial that the court heard evidence thereon. This evidence is not brought forward; consequently, the presumption obtains that the trial court's action was justified.

Appellant, by her motion for rehearing, has directed our attention to the court's failure, in passing sentence upon her, to make application of the indeterminate sentence law. Therefore, the motion for rehearing will be granted to that extent and the sentence will be reformed to read that the defendant, Gladys Trotti, be confined in the State Penitentiary for not less than two nor more than five years, and as thus reformed the judgment is affirmed.

In all other respects, the motion for a rehearing will be overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.