Baines v. State
| Citation | 61 S.W. 119 |
| Parties | BAINES v. STATE.<SMALL><SUP>1</SUP></SMALL> |
| Decision Date | 21 February 1901 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from district court, Erath county; J. S. Straughan, Judge.
Dock Baines was convicted of an assault with intent to murder, and he appeals. Reversed.
Kearby & Kearby and Daniel & Keith, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.
Appellant was convicted of an assault with intent to murder, and his punishment assessed at six years' confinement in the penitentiary.
Appellant made a motion for continuance on account of the absence of O. R. McCoy and Jim White. The diligence used to procure the witness McCoy was sufficient. We do not regard the diligence as to White sufficient, nor was his testimony material. However, as shown by the application for continuance, the testimony of McCoy was material; that is, the state's case depended alone on circumstantial evidence. Appellant's defense was an alibi. He lived some three or four miles from the place where the shooting occurred. Both of the state's witnesses who speak as to time place this at night, between 8 and 9 o'clock. Minnie Freeman (prosecutrix) states: "I was shot on the night of the 9th of August, 1900, at my father's house, and in the yard that surrounds the house." Mrs. J. O. Freeman states: These were the only two witnesses present at the time of the shooting, and neither of them identifies the defendant as the party. The application for continuance alleged "that the absent witness, McCoy, would testify that he was at the defendant's house, in Hood county, Texas, on the evening of August 9, 1900 (the evening or night that Minnie Freeman was shot), from six o'clock in the evening until nine o'clock in the night of said day, and that defendant was at home, three and one-half miles from the place where Miss Minnie Freeman was shot, from the hour of six o'clock p. m. until nine o'clock p. m. of said evening, and that witness left defendant at his home at nine o'clock on said night." This application was overruled. In connection with the motion for new trial on the ground of erroneously overruling the application for continuance, appellant appended the affidavit of this witness, McCoy, who swore "that he was a citizen of Parker county on the 20th of October, 1900, and before that time; that he was acquainted with Dock Baines, who resided in Hood county, Texas; that affiant was at Dock Baines' house, where Baines lived, on the evening of the 9th of August, 1900, from about the hour of five o'clock...
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Dent v. State
...but was absolutely material to his defense. See authorities cited under section 609, White's Ann. Code Cr. Proc.; Baines v. State (Tex. Cr. App.) 61 S. W. 119. A majority of the court conclude that this alibi testimony was not material, because they say Isaacs may have been convicted not as......
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Williams v. State
...11 S.W.(2d) 512. Such rule appears first to have come into existence in a case decided February 21, 1901, entitled Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312; a vigorous dissent being filed at the time by one member of this court. Whatever plausible reasons may be urged against ......
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Mathason v. State
...of the testimony for that of the jury. Long v. State, 39 Tex. Cr. R. 462, 46 S. W. 821, 73 Am. St. Rep. 954; Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312; Le Roy v. State, 43 Tex. Cr. R. 556, 67 S. W. 409; Freeman v. State, 75 S. W. 505; Lawhorn v. State, 46 Tex. Cr. R. 555, 81 S.......
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White v. State
...have produced a different result, a new trial should be granted. Many of our decisions, apparently beginning with Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312, hold that, if the absent witness make affidavit that he would have sworn, if present, to the facts stated in the applicat......