Burleson v. State , 33 Tex. Crim. 549 ( 1894 )

Appellant was convicted of murder in the first degree and his punishment fixed at death, from which he appeals.

The court did not err in overruling the motion for a continuance. There is not the slightest diligence shown by appellant in procuring the attendance of the absent witnesses. The homicide occurred May 2, 1894, and on the same day appellant was arrested and placed in jail in a neighboring county. On August 9th an indictment was found, and upon the 20th of August he was brought back to Limestone County for trial, and counsel was appointed by the court. The case was called for trial on September 3rd; no subpœna or other process was demanded or issued. Appellant claims in his application that he won the money found on his person at the time of his arrest, at gaming, from two other negroes who passed by while he was at work. That he had never seen them before nor since; nor did he know their names or hear them name each other; nor did he know where they lived. The money so found corresponded with that seen in possession of deceased immediately before the homicide. We think the application presents neither diligence nor sufficient grounds for a continuance. But apart from the improbability of the statement, appellant admits on trial, that when he was first arrested he denied having any money in his possession, and when the money was found he claimed to have gotten it from his employer, and when this was shown to be false, claimed he got from his wife, and not until the trial does he claim to have won the money from two strangers. We do not think the court erred in overruling the motion for a continuance.

The testimony is circumstantial, but is sufficient to sustain the verdict. It shows that deceased was in possession of money, and defendant was present and saw the money when deceased paid for some purchases. Deceased started out southeast from town and was followed by defendant, who lived west from town, and the parties were seen three miles from town, the defendant still following deceased, who was driving a wagon, and defendant on foot with a rock in his hand. Deceased was murdered and robbed. Shortly after, and on the same day, defendant was arrested, and money corresponding with that seen in possession of deceased shortly before was found on defendant, who denied he had any money, and then gave conflicting accounts; and upon clothes found at his house were fresh blood-spots. The record presents a cold, bloody murder, for the purpose of robbery.

The judgment is affirmed.

Affirmed.

DAVIDSON, Judge, absent.