Barrow v. State , 129 Tex. Crim. 189 ( 1935 )

Appellant insists that we erred in upholding the action of the trial court in overruling his second motion for a continuance. As to the material facts set up in said application, as said in our original opinion, we think the witness Thomas covered the same ground, and that the averment in the application of the fact that appellant could not obtain the testimony desired from any other witness was to that extent untrue. We are still of opinion that no sufficient showing was made of any good reason why the trial court should have granted said application. As to the witness McCombs, we are bound by the qualification appended to the bill of exceptions by the trial court, to which no exception was taken.

Appellant complains of the fact that in our opinion we noted that his application for continuance, based upon the absence of witness McCombs, was not signed by appellant. In his motion for rehearing he calls attention to the signature of the appellant and the jurat of the notary which appear at another place in the transcript. The jurat of the officer referred to appears to have been dated prior to the date set for the trial of the case, and could not be held to refer to an application for continuance which manifestly would be made, signed and sworn to after the case was called for trial. We did not base any part of our holding, however, upon such fact.

We have carefully gone over all the matters set up in appellant's rather extended motion, and not being able to agree that any of them are of such nature as to call for a reversal of the judgment, the motion for rehearing is overruled.

Overruled.