Turner v. State , 109 Tex. Crim. 301 ( 1928 )

In an oral argument and written motion citing many statutes and decisions, counsel for the appellant earnestly insists that the action of the court in overruling his application for a continuance should be considered, notwithstanding there appears in the record no bill of exceptions reserved to the action of the court in refusing to grant the motion. He cites Arts. 667 and 841, C. C. P., 1925; Arts. 2237, 2278, and 2281, R. S., 1925; also Holmes v. Coalson, 178 S.W. 628; Steel v. State,55 Tex. Crim. 551.

The proposition that the appellate court cannot review the action of the trial court in overruling an application for a continuance in the absence of a bill of exceptions has not only been repeatedly announced by this court and the Supreme Court of this state, but the decisions rest upon what has heretofore been and is now considered very sound reason. From the opinion of Judge White in the case of Nelson v. State, 1 Tex.Crim. App. 41, we quote:

"The former decisions of our courts, from the earliest days down to the present, make the saving of a bill of exceptions a prerequisite and sine qua non to revisory action by the appellate court. Nor is the failure to do so remedied (as in this case) by incorporating the action of the lower court in the judgment rendered. Among the many authorities, the following are cited, viz.: Campion v. Angier, 16 Tex. 93; Parker v. McKelvain, 17 Tex. 159; Cotton v. State, 32 Tex. 640 [32 Tex. 640]; Bowman v. State, 40 Tex. 8; Jones v. State, 40 Tex. 188; Townsend v. State,41 Tex. 134; Anderson v. State, 42 Tex. 390 [42 Tex. 390]; and State v. Williamson, 43 Tex. 500."

From the opinion of Judge Wheeler in the first case cited above by Judge White (Campion v. Angier), the following quotation is taken:

"The correct practice doubtless is, in no case to revise the judgment of the court refusing a continuance, unless the party seeking a reversal on that ground has reserved the point by a bill of exceptions. It not unfrequently happens that we would be at a loss to discover upon what ground a continuance has been refused, were it not for reasons contained in the bill of exceptions. When called upon to sign a bill of exceptions, the court may state very satisfactory reasons, apparent to the court there, which would not otherwise be made to appear to this court; as, that the evidence sought was, in fact, within the reach of the party (Hall v. York, supra), or there was evidence before the court that the affidavit was not in fact true."

These announcements have been followed in almost innumerable instances, and so far as we are aware, there has been no departure or deviation. See Branch's Ann. Tex. P. C., Sec. 304; Vernon's Tex.Crim. Stats., 1916, Vol. 2, p. 727, note 2, and p. 729, note 5. The overruling of an application for a continuance may be justified upon many grounds which are not apparent upon the motion. An attempt to enumerate all of them would be futile, because they are as variant as the facts developed upon the trial. Illustration may be given as follows: The witness named in the application for a continuance may have appeared during the trial. Whether used as a witness or not, any error in overruling the bill would be cured, but the court, on appeal, would not know it unless a bill of exceptions was taken upon which the trial court might state, by way of explanation or otherwise, the facts which justified or rendered harmless his action. So, the same would be true if in the development of the case the absent testimony was rendered immaterial, cumulative or false. Those matters and countless others would only appear through a bill of exceptions. It would seem unnecessary, however, in a practice well established and to which adherence has been so constant and so long, to argue its soundness. It may be added, however, that the purported absent testimony, as set out in the motion for a continuance, was not, in our opinion, relevant or material.

The motion is overruled.

Overruled.