Bennett v. State
| Decision Date | 30 January 1929 |
| Docket Number | (No. 12199.) |
| Citation | 14 S.W.2d 59 |
| Parties | BENNETT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Lamb County; Charles Clements, Judge.
Gordon (Red) Bennett was convicted of robbery, and he appeals. Reversed and remanded.
E. A. Bills, of Littlefield, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
The offense is robbery; punishment fixed at confinement in the penitentiary for a period of five years.
The following is the theory of the state as developed from the evidence: On the night of March 3d there was a dance at the home of Mr. Nichols, about three miles from the town of Amherst. While the dance was in progress, Clarence Vivian was assaulted and robbed of a sum of money by a man named Slim Ownes. He struck Vivian upon the head with some instrument which felled him and rendered him unconscious for the moment. After attending the dance, Vivian and one May entered a Ford automobile, drove away from the Nichols home, and stopped their car near the public road, where it remained for a short time, and the robbery took place. Both Vivian and May were under the influence of intoxicants; May being in a drunken stupor. A Ford roadster passed May's car while it was parked, turned, and came back. Vivian and May had gotten out of their car, when a person got out of the Ford car and committed, the robbery. After the robbery, and as the Ford runabout was driven away, May observed another person in it whom he did not recognize. The state relied upon various circumstances to establish the appellant's identity as the companion of Ownes and as the other occupant of the Ford roadster at the time of the robbery.
Appellant relied upon an alibi, and, before going to trial, applied for a continuance to secure the testimony of Slim Walling, a resident of Lamb county, from whose testimony the appellant expected to support his defense of alibi. Among other circumstances relied upon by the state to connect the appellant with the commission of the offense, there was testimony that Vivian and May remained at the place where the dance occurred for some time; that May was quite under the influence of liquor; that he and Vivian entered May's car and drove out to the place where the robbery occurred; that the appellant and Ownes left the place where the dance occurred in an automobile, and it was the theory of the state that they occupied the automobile which was used by the robbers; that Ownes committed the actual robbery, while the appellant sat in the automobile and kept the engine running, and together with Ownes drove back to the Nichols home.
The testimony imputed in the application to the absent witness Slim Walling was to the effect that on the night that the dance occurred he was driving his automobile; that he stopped the car at a point some 200 or 300 yards from the Nichols home, and while there the appellant and Ownes drove up in a Ford runabout which was stopped. The appellant got out of the car and came to that in which the witness was riding and engaged in a conversation with Walling. While the appellant was in conversation with the witness, another person got into the car with Ownes, and it was driven away in a westerly direction, which was in the direction in which the offense took place; that the appellant crawled through the fence into an inclosure as the car containing Ownes and another was driven away; that Walling soon thereafter returned to the dance, where he saw the appellant, and, after seeing him, a messenger came giving information of the robbery.
It was apparent from the motion for a continuance and the bill of exceptions that the appellant had been diligent in causing the issuance of a subpœna for the witness Walling, and that it had been duly served and returned; that Walling's absence was due to sickness. The averment that he was sick was supported by a written communication of the doctor, in which it was declared that Walling was under his treatment and was unable to attend court and would probably be sick for several days, and the materiality of the testimony is made manifest from an examination of the statement of facts as well as from the bill of exceptions. The testimony of the witness Walling, moreover coincides with that of the witness Kuykendall, who was with Walling, and also with that of the appellant, who testified in his own behalf, and denied any connection with the assault or his presence there, and admitted that he left the dance with Ownes, but quit him under the circumstances and at the time which was described by the testimony of the absent witness Walling. The appellant's testimony and that of Walling is in conflict with the state's theory, which, through circumstances, attempts to identify the appellant as the person who was with Ownes at the time the assault was committed. The application was the first one, and complies with all the statutory requirements. Upon the hearing of the motion for new trial, witnesses were called and based upon their testimony the court qualified the bill. No issue was made at the time of the trial challenging the truth of the statement in the motion accounting for the absence of the witness upon the ground of sickness. If at that time the truth of the matter was a subject of doubt, it was within the power of the state to issue process for the witness. He was already under process issued at the instance of the appellant, and with the information that he was sick and the certificate of the doctor to that effect, with the truth of it not challenged by the state at the time, the sufficiency of the diligence of the appellant is not deemed open to question. The absent witness being under process and sick at the time of the trial, it affirmatively appearing that he had but recently become ill, the averments of the application for a continuance not being controverted, and the materiality of the testimony as disclosed by the application being obvious, the error of the court in overruling the application is manifest. Adams v. State, 19 Tex. App. 12; Dyer v. State, 47 Tex. Cr. R. 253, 83 S. W. 192; Derrick v. State, 100 Tex. Cr. R. 223, 272 S. W. 458; Branch's Ann. Tex. P. C. § 338. On the hearing of the motion for new trial there was no evidence combating the fact that at the time of the trial the witness Walling was sick. There was testimony that some days after the trial he was seen by the district attorney and did not then appear to be sick. The physician who attended him, however, testified on the hearing that at the time of the trial the witness was sick, that he was visited by the doctor on the night before the trial began, and that he was suffering from inflammation of the stomach and was not able to attend court on the day of the trial. That the witness was not sick at the time of the trial was not a proper inference for the court to draw from the testimony to the effect that some days after the trial he was not confined to his house. In the case of Dyer v. State, cited above, the exact question was presented, and was ruled against the state's present contention. To the same effect are the cases cited above.
In contesting a motion for new trial, the state is permitted by article 757, C. C. P. 1925, to present facts either by affidavit or oral testimony such as would render the error in overruling the motion for continuance harmless. Richardson v. State, 28 Tex. App. 216, 12 S. W. 870. When the evidence adduced upon the hearing of the motion is properly brought up with the record, it is subject to review on appeal. See Washington v. State, 86 Tex. Cr. R. 652, 218 S. W. 1043; Bowman v. State, 98 Tex. Cr. R. 377, 265 S. W 909; Hughes v. State, 106 Tex. Cr. R. 550, 293 S. W. 575. Tested by the rule just stated, the evidence fails to show that at the time...
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