Clark v. State
| Decision Date | 27 November 1895 |
| Parties | CLARK v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Kaufman county; J. E. Dillard, Judge.
Miller Clark was convicted of an assault with intent to commit rape, and appeals. Reversed.
Lee Stroud, Gossett & Young, and Geo. F. Shaw, for appellant. Mann Trice, Asst. Atty. Gen., for the State.
Appellant was convicted of an assault to commit the crime of rape, and given two years in the penitentiary. This indictment was presented on the 12th day of September, 1895, and the judgment of conviction was entered on the 20th day of the same month. An application for a continuance was made by appellant, for the testimony of three absent witnesses, to wit, L. D. Pollard, G. C. Pollard, and A. O. Dowdle. Without entering into a discussion of the question of diligence, we are of the opinion that it was amply sufficient. The facts expected to be proved by these absent witnesses were of the highest importance to the rights of the accused, and not at all improbable when viewed in the light of the other testimony. The ground upon which the application to continue the case was denied, is found in the bill of exceptions, which is, "that the defendant had two witnesses with him, Lum Hines and Hewitt Mathis, in the wagon with him when he came to Laroe's house, and J. N. Pollard, who was along with the witness Dowdle, by whom he could prove what transpired." It seems that the learned judge below was of the opinion that, if there were any other witnesses present besides those for whom the continuance was sought, the application should be denied. This is the first application for a continuance, and the appellant is not restricted to any number of witnesses. Again, if this were a second or a subsequent application, under due diligence, the appellant would be entitled to a continuance, though there might be other witnesses present at the same place, and along with the absent witnesses, but he must show that he could not prove the facts sought from the absent witnesses by any other witness. We have examined the statement of facts very closely, and are forced to state that the testimony which tends to show the guilt of the appellant is very unsatisfactory. We think it can be demonstrated, taking the testimony of the strongest witnesses against the appellant, that it was physically impossible for him to have done what the prosecutrix says he did, and over-taken those people at the end of the lane. We will...
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State v. Henry
... ... continuance because of an absent witness merely on the ground ... that there were other witnesses to the same point is error, ... [105 A. 852] ... it appears that the testimony of the absent witness is ... material and important. Carter v. State, 37 Tex ... Crim. 403, 35 S.W. 378; Clark v. State (Tex. Cr ... App.) 33 S.W. 224 ... The ... question is not merely whether or not the court will be able ... to coerce or enforce the attendance of the absent witness, if ... there is reasonable ground of believing that such witness ... will be obtained by a continuance if ... ...
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