Allen v. State
| Decision Date | 24 February 1926 |
| Docket Number | (No. 9882.) |
| Citation | 281 S.W. 545 |
| Parties | ALLEN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
John Allen was convicted of unlawful transportation of intoxicating liquor, and he appeals. Affirmed.
John A. Cook and J. F. Wilkinson, both of Mt. Pleasant, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
At the time of his arrest the appellant and one Holcomb were riding in an automobile driven and owned by the latter. On the seat between the two there was one gallon of whisky, and three half-gallons were found in a suit case situated in another part of the car. The automobile was traveling upon the public road. At the time of the arrest Holcomb said that he was driving a service car, and was taking the appellant to Pittsburg. According to the appellant's testimony, he was a party to a lawsuit, and had gone to Mt. Pleasant at the suggestion of his attorney to consult with a witness; that he went to see the witness in company with Williams and Smith in a Ford car. After seeing the witness, the car was stopped on account of tire trouble, and, while waiting for its repair, Holcomb appeared and invited the appellant to ride with him to Daingerfield. A few moments later, and after he had ridden but a short distance in Holcomb's car, the arrest took place. The arrest was made by Chapman, a city marshal, and Cato, a peace officer. According to his testimony, appellant, upon his arrest, said in the presence of the officers that the stuff belonged to Holcomb. He claimed in his testimony that the suit case was opened by Cato with a key which was in a bunch with the one used in starting the car, and that Holcomb admitted the ownership of the keys. He disclaimed any interest in the whisky or knowledge of its presence.
Chapman testified that the suit case was opened at the jail with keys gotten from the appellant. There was testimony that during the day before the arrest, and before appellant got in Holcomb's car, the two were seen in company with each other, and that appellant got in the car and had a suit case with him. Appellant claimed that the suit case found in the car was unlocked at the jail by Cato with keys which belonged to Holcomb, and that a person by the name of Kelly saw this. Kelly was not used as a witness.
Appellant made a motion for a continuance to secure the testimony of Williams, Smith, and Cato. No legal diligence was used to secure the attendance of Smith and Williams. Appellant expected to prove by Cato that the bunch of keys, among which was that used in unlocking the suit case, was taken from the switch in the car which belonged to Holcomb, and that at the time of the arrest Holcomb claimed both the whisky and the car, and stated in the presence of Cato and Chapman that the whisky belonged to him.
Attached to the bill of exceptions which was prepared by the court was the affidavit of Cato to the effect that he was present at the time of the arrest of the appellant and Holcomb; that Holcomb did not state that the whisky belonged to him; that, after the arrest, Cato rode to the jail with Holcomb; and that appellant rode with Chapman in the latter's car; that they were searched at the jail, and the key which unlocked the suit case containing the whisky was, according to the best recollection of the witness, taken from the appellant; that the witness did not get the key from the key ring in Holcomb's car; and that the key from that ring was not used in unlocking the suit case. In view of the affidavit of the absent witness Cato showing that he would not give the testimony set out in the motion for a continuance, there was no error in refusing to grant a new trial. See Shaw v. State, 22 S. W. 588, 32 Tex. Cr. 155...
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Walker v. State
...the facts alleged; hence, no error is shown in overruling the motion. Benson v. State, 38 Tex.Cr.R. 487, 43 S.W. 527 and Allen v. State, 103 Tex.Cr.R. 470, 281 S.W. 545. As a witness in his own behalf appellant sought to testify as to what he expected to prove by Butler had he been present ......
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Knox v. State, 13569.
...give the testimony set out in the application for a continuance. Vickers v. State, 92 Tex. Cr. R. 182, 242 S. W. 1032; Allen v. State, 103 Tex. Cr. R. 470, 281 S. W. 545; Branch's Ann. Tex. P. C. § 337, and cases there collated, including Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. It is un......