Burton v. State, No. 17571.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtChristian
Citation86 S.W.2d 768
Decision Date05 June 1935
Docket NumberNo. 17571.
PartiesBURTON v. STATE.
86 S.W.2d 768
BURTON
v.
STATE.
No. 17571.
Court of Criminal Appeals of Texas.
June 5, 1935.
Rehearing Denied October 23, 1935.

Page 769

Commissioners' Decision.

Appeal from District Court, Houston County; Ben F. Dent, Judge.

Frank Burton was convicted of murder, and he appeals.

Affirmed.

B. F. Bradley and Kennedy & Granberry, all of Crockett, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.


The offense is murder; the punishment, confinement in the penitentiary for seven years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Jeans Bowens by shooting him with a gun.

Appellant and his wife lived in a small house with deceased and his wife. According to the version of the state, prior to the time deceased and his wife had occupied the house, appellant had promised to move, but had remained in the house over deceased's objection. The state's testimony was to the further effect that on the morning of the homicide deceased was feeding some hogs when appellant approached and shot him to death. Appellant testified that prior to the homicide he had discovered that deceased was intimate with his (appellant's) wife, he having seen them engaged in an act of sexual intercourse; that he took deceased to task and he denied the illicit act; that deceased then told him he had found his (appellant's) horse in his field and was going to kill him and the horse; that he went on to the house and deceased followed him; that he procured his gun and came out the door and deceased continued to follow him; that deceased made a demonstration, and when he did he began to shoot deceased; that he killed him because he had caught him having intercourse with his wife and for the further reason that he had threatened to kill him and his horse. The state's testimony was to the effect that appellant's wife was not at the place where appellant claimed he found her in a compromising position. In short, the state's evidence controverted the proof on the part of appellant that an act of intercourse occurred.

Bill of exception No. 1 is concerned with the refusal of the court to grant appellant's application for a continuance which was based on the fact that one of his counsel was a member of the Legislature which had adjourned a called session less than ten days prior to the time the case was called for trial. It appears that appellant was also represented by another attorney. Nine witnesses testified on the trial. The statement of facts comprises less than 62 pages. The trial of the case consumed but little time. There is no showing of probable injury to appellant because of the failure to continue the case. Under the circumstances, we think the announcement of this court in Davis v. State, 120 Tex. Cr. R. 330, 49 S.W.(2d) 805, 806, controlling. We quote from the opinion as follows:

"Appellant sought a continuance on the ground that one of his attorneys was a member of the Legislature and then in attendance on a session of such Legislature. The absence of an attorney whose services are made to substantially appear from the record to have been of necessary character in the trial of any criminal case is a matter addressed, in the first instance, to the sound discretion of the trial judge who is asked to continue such case because of the absence of such attorney; and this court will review upon appeal such refusal to continue only when it appears that the trial court has abused his discretion to the probable injury of the accused. Discretion in regard to such a ruling on the part of the trial court is believed to be an attribute inherent in the courts, and attempt to take it away by legislative enactment would seem a transgression by one department of our government upon the proper functions of a different and co-ordinate department thereof. The terms of chapter 7, Acts 41st Legislature, Regular Session (Vernon's Ann. Civ. St. art. 2168a), are invoked. Same make the absence of such attorney ground for a continuance when it is shown that his presence is necessary to a fair and proper trial of the case. Affidavits

Page 770

by the attorney in question and appellant were prepared and appended to the application for continuance and presented to the trial court, who thereupon heard evidence pro and con. It was developed that appellant had been represented by a strong and able firm of...

To continue reading

Request your trial
5 practice notes
  • Collier v. Poe, No. 69739
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 20, 1987
    ...our government upon the proper functions of a different and co-ordinate department thereof." In Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935), the motion was based on the fact that one of Burton's attorneys was a legislator, and a Called Session had adjourned less than 10 da......
  • Bodde v. State, No. 58337
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 14, 1978
    ...disqualified from serving as a juror, Art. 35.16(a) (2), V.A.C.C.P., the court properly excused him. Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935). Appellant contends that the court should have declared a mistrial on its own motion and excused all those jurors who had been select......
  • Ex parte Bronson, No. 25993
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 5, 1952
    ...56; Rogers v. State, 109 Tex.Cr.R. 88, 3 S.W.2d 455; Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047; Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768; Gonzalez v. State, Tex.Cr.App., 176 S.W.2d 195, In the latter case it was said in ordering reversal because of the service of an unpardoned......
  • Government Services Ins. Underwriters v. Jones, No. A-9590
    • United States
    • Supreme Court of Texas
    • May 22, 1963
    ...v. State, 114 Tex.Cr.R. 462, 26 S.W.2d 238; Davis v. State, 120 Tex.Cr.R. 330, 49 S.W.2d 805; Burton v. State, 129 Tex.Cr.R. 238, 86 S.W.2d 768; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759. With the adoption of the Texas Rules of Civil Procedure by the Supreme Court as authorized by the ......
  • Request a trial to view additional results
5 cases
  • Collier v. Poe, No. 69739
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 20, 1987
    ...of our government upon the proper functions of a different and co-ordinate department thereof." In Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935), the motion was based on the fact that one of Burton's attorneys was a legislator, and a Called Session had adjourned less than 10 days......
  • Bodde v. State, No. 58337
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 14, 1978
    ...disqualified from serving as a juror, Art. 35.16(a) (2), V.A.C.C.P., the court properly excused him. Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935). Appellant contends that the court should have declared a mistrial on its own motion and excused all those jurors who had been select......
  • Ex parte Bronson, No. 25993
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 5, 1952
    ...56; Rogers v. State, 109 Tex.Cr.R. 88, 3 S.W.2d 455; Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047; Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768; Gonzalez v. State, Tex.Cr.App., 176 S.W.2d 195, In the latter case it was said in ordering reversal because of the service of an unpardoned......
  • Government Services Ins. Underwriters v. Jones, No. A-9590
    • United States
    • Supreme Court of Texas
    • May 22, 1963
    ...v. State, 114 Tex.Cr.R. 462, 26 S.W.2d 238; Davis v. State, 120 Tex.Cr.R. 330, 49 S.W.2d 805; Burton v. State, 129 Tex.Cr.R. 238, 86 S.W.2d 768; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759. With the adoption of the Texas Rules of Civil Procedure by the Supreme Court as authorized by the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT