Arrington v. State

• Decision Date: 11 January 1893
• Citation: 20 S.W. 927
• Parties: ARRINGTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 927

20 S.W. 927

ARRINGTON v. STATE.

Court of Criminal Appeals of Texas.

January 11, 1893.

Appeal from Collin county court; M. G. ABERNATHY, Judge.

Will Arrington was convicted of disturbing religious worship, and appeals. Reversed.

Abernathy & Beverly, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of disturbing religious worship. The offense was committed about November, 1891, and defendant tried in the examining court in February, 1892, and required to give bail for his appearance before the succeeding term of the county court. When that court convened, he was present, and ready for trial. The affidavit charging him with the offense having been lost, an information was not presented. At the next succeeding term of the county court, on the first day thereof, another affidavit was made, and upon this the information in this case is predicated. The defendant was at once arrested, and, the state having announced ready for trial, he requested time to secure his testimony, as well as to prepare himself for trial. This was refused. He then filed an application for a continuance, which being also refused, he reserved a bill of exceptions. The continuance was sought for the testimony of one Lawhon, by whom it was expected to be shown that the witness had known the defendant for years, was present at the time of the disturbance, standing within a few feet of him, and saw the party who disturbed the congregation, and would testify that it was another party, and not defendant, who did so. This was the first application. The testimony was material, and we cannot say it was not probably true. If the defendant did not use the imputed language, or there was a reasonable doubt thereof, he was not guilty. The testimony was conflicting as to whether defendant was or was not the person who caused the disturbance. It being a first application for continuance, the fact that the absent testimony was cumulative is not a reason for overruling the motion for a new trial, based upon the refusal to grant the continuance. Again, pending the new trial, and during the argument, this witness made his appearance before the court, and was tendered as such by the defendant, with a request that he be permitted to introduce his testimony at that time. This was also refused, and defendant again excepted. Inasmuch as the court had refused the continuance, and in view of the fact that the testimony was material, and the...