Gordon v. State , 120 Tex. Crim. 602 ( 1932 )

The court certifies in bill of exception A that the witness Riptoe had been served with process on May 3rd directing him to appear as a witness in this cause on May 4th. Lack of diligence to procure process in the first instance would seem immaterial if the witness was in fact served in time to have obeyed the process, and that part of our original opinion calling attention to the delay in procuring process might have been omitted. However, if the witness did not appear on May 4th in obedience to the process — and there is no averment in the application for a continuance that he did do so — it would ordinarily be lack of diligence to omit further effort to secure his attendance, although the case was called for trial at a later day of the term. The following cases seem to be directly in point. Henry v. State, 38 Tex.Crim. Rep.,42 S.W. 559; Fortune v. State, 96 Tex.Crim. Rep.,259 S.W. 573; Hill v. State, 18 Texas App., 665; Bates v. State, 99 Tex.Crim. Rep., 271 S.W. 389; Godby v. State,88 Tex. Crim. 212, 225 S.W. 516; Suber v. State,88 Tex. Crim. 416, 227 S.W. 314; Washington v. State,91 Tex. Crim. 546, 239 S.W. 961; Johnson v. State,95 Tex. Crim. 269, 252 S.W. 554; Jordan v. State, 96 Tex. Crim. 70,255 S.W. 735.

In our original opinion bills of exception 2, 3, 4, 5, 6, 7, 9 and 10 were grouped and discussed together. We referred to an explanation of the court on bill number two. Appellant calls attention to the fact that the explanations on that bill, as well as on bill four, were excepted to. This being true, of course, the bills must be considered without the explanations. Disregarding them, we discover no error in the bills in view of the entire record.

We have again examined the other questions presented in the motion for rehearing but find nothing upon which a reversal of the judgment could be properly predicated.

The motion for rehearing is overruled.

Overruled