Bascom v. State , 114 Tex. Crim. 32 ( 1929 )

Appellant contends that we erred in refusing his application for continuance, upon the ground that the absent testimony, though cumulative, was of such materialty as that we should have held upon motion for new trial that he was entitled to same under the opinions of this court in certain cases that are cited. We have examined each of these authorities. In our original opinion attention was called to the fact that the application for continuance was wholly defective in that it, being a second application, should have complied with the statutory requirement that it state that the absent testimony could not be obtained from any other source. We find none of the authorities referred to to be upon similar facts. In Chapman v. State, 179 S.W. Rep. 572, it appears that the application was a first application, which was refused because of lack of diligence. The same thing was true of Sherwood v. State, 88 Tex.Crim. Rep.. Belton v. State,7 S.W.2d 1076, presents no case of a defective application. In our former opinion we cite the case of Brannan v. State, 1 S.W.2d 279. An examination of this authority will show that it is exactly in point. There was an application for continuance which was held defective because it did not state that the testimony could not be obtained from any other source, and notwithstanding the fact that the affidavit of the absent witness was attached to the motion for new trial, as in this case, we held no error was shown, and the judgment was affirmed.

The motion for rehearing will be overruled.

Overruled.