Bronson v. State

• Decision Date: 12 January 1910
• Citation: 127 S.W. 175
• Parties: BRONSON v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 175

BRONSON v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1910.

Rehearing Denied April 13, 1910.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

Joe Bronson was convicted of burglary, and appeals. Affirmed.

Israel Dreeben and A. S. Baskett, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

This is an appeal from a conviction for burglary; the penalty being assessed at two years in the state penitentiary.

From the statement of facts it appears that on the night of February 12, 1909, and about 12 o'clock at night, the prosecuting witness, W. H. Darnell, was aroused by an unusual noise around his premises. He got up out of bed, secured a gun, and went out to a chicken house, which said chicken house was in his back yard. This chicken house was a closed building, with walls, and was also covered. There was a door through which ingress and egress was made to the house. When the prosecuting witness got out in the back yard and within about 10 feet of the chicken house, he saw a man standing right at the door of the chicken house, said door being opened (the witness recalled specifically that he had closed and locked the door the night before), and when the witness had gotten within 10 feet of the house he fired upon the man in the door. The man fell, and was unable to get away, and was turned over to the officers, and afterwards proved to be the appellant in this case. There were two other parties with the appellant, who made their escape from the house by tearing off plates of iron sheathing on the back side of the house. After the appellant was shot down, he made a statement to the prosecuting witness, Darnell, in which he said practically that he was a chicken thief, and that he followed that kind of business; that he, in company with the other two parties, went into the chicken house, and that they had three sacks, and that they had caught some chickens; that when the dog barked he suggested to his pals that they leave, and they replied "No, let's get all the chickens," but the witness was too quick for him, and that he shot before he (appellant) could shoot; that, had they had a moment more, they would have secured all the chickens; that they had three sacks, and that he (witness) would find, when he went into the chicken house, that two of the sacks had feathers in them and one a rooster; that witness afterwards went into the house and found the sacks as described by appellant. This is a sufficient statement of the facts to explain the issues raised on this appeal.

1. When the case was called for trial, appellant made a motion for continuance for the want of the testimony of Jesse Lynes, Marshall Lynes, and H. T. Batchelor, and the appellant expected to prove by the witness Batchelor his (appellant's) good character; that by the witnesses Jesse and Marshall Lynes he expected to show that on the morning of the day the alleged offense was committed he (appellant) was in company with them, and that on this night they were making a cut across some vacant property in the rear of Darnell's place, and near the chicken house of the said Darnell, and that as they were passing along across said vacant property some parties came out and hailed them, and shot at them, and wounded this appellant; that there was a wire fence at the gate surrounding said chicken house, and that when appellant was so hailed, and saw the gun in the hands of the party hailing him, for his own protection he stepped into this vacant lot surrounding this chicken house, and in going in there his sole intention was to seek a place of safety, and not for the purpose of committing theft. He claimed that these witnesses lived in the city of Dallas, and that on the 7th day of April, 1909, he caused a subpoena to issue for said witnesses, which was returned "Not found"; and as to the witness Batchelor the return was that he was in San Antonio. The court overruled this application for a continuance, to which action of the court the appellant duly excepted. It may be stated, in passing, that so far as the diligence was concerned it was proper. The court in its qualification to the bill of exceptions states that the appellant was not entitled to a continuance for the witness Batchelor to prove general character; and, second, as to the witnesses Jesse and Marshall Lynes, upon the presentation of said application, he ordered an instanter attachment for said witnesses, but that the sheriff reported that no such witnesses could be found in the city of Dallas. The court further states, as a qualification to the bill, that in the light of the testimony adduced upon the trial the testimony of these witnesses was not probably true, and that no witnesses could be found who would state that they were with appellant on the night he was shot at Darnell's house.

This motion for a continuance came before the court below on motion for new trial, and was brought in review before the court below, and unless, in the light of the record, the judge abused his discretion, this court cannot revise the action of the court below. Article 597, White's Code Cr. Proc., in setting out the qualifications and the requirements of an application for a continuance, says in subdivision 6 of said article: "Provided, that should an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted," etc. From the reading of the statute it follows that all applications for continuance are addressed to the sound discretion of the court, and they are subject to review on motion for new trial, and that this court will not revise the action of the court below in refusing a new trial upon that ground, unless it clearly appears that there was an abuse of legal discretion on the part of the trial court; and this discretion, which is vested in the court below, is a very broad one, qualified only by the requirement that it be a sound discretion. This implies that the action of the court upon the application, even when it is first presented, should not be an arbitrary determination of its merits and sufficiency by the trial court, but the result of a sound discretion, which, of course, in passing upon an application prior to the trial, cannot be affected by the evidence which is afterwards adduced at the trial forced upon the defendant by the refusal of the continuance. But when, after the trial and conviction of the defendant, the court is called by the motion for new trial to reconsider the grounds assigned in the application for a continuance, the truth, materiality,...