Davis v. State

• Citation: 49 S.W.2d 805
• Decision Date: 16 March 1932
• Docket Number: No. 14976.,14976.
• Parties: DAVIS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

49 S.W.2d 805

DAVIS v. STATE.

No. 14976.

Court of Criminal Appeals of Texas.

March 16, 1932.

Rehearing Denied May 25, 1932.

Appeal from District Court, Shackelford County; M. S. Long, Judge.

Thomas Davis was convicted for murder, and he appeals.

Affirmed.

See, also, 114 Tex. Cr. R. 620, 26 S.W.(2d) 649.

Grisham, Patterson & Grisham, of Eastland, for appellant.

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

LATTIMORE, J.

Conviction for murder; punishment, ten years in the penitentiary.

Appellant was convicted for the murder of Leon Shook, who appears to have been shot and killed in the same transaction in which a brother of deceased, Lucian Shook, was also killed.

Failing to find averment or proof of injury resulting from a change of venue made in this case on the court's own motion, such as is always held necessary to call for review, we see no reason for discussing the question raised by appellant in this regard. Henderson v. State, 104 Tex. Cr. R. 495, 283 S. W. 497; Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Treadway v. State, 65 Tex. Cr. R. 208, 144 S. W. 655.

The point made, that the court, having ordered a continuance before changing the venue, had lost his right to so change such venue, has been decided against appellant in the case of Hamilton v. State, 40 Tex. Cr. R. 464, 51 S. W. 217, which is substantially followed in English v. State, 85 Tex. Cr. R. 452, 213 S. W. 632. Complaint of this appears in bill of exception No. 16.

Appellant's bill of exception No. 14 sets out a plea of former conviction, which appears to have been filed in the office of the clerk of the district court of the county from which this case had been transferred on change of venue. The bill recites as follows:

"The defendant filed his plea of autrefois convict as shown by a copy of same hereto attached, marked Exhibit `A,' and made a part hereof.

"The said motion was in all things overruled.

"To which action of the court the defendant then and there in open court excepted, and here now tenders this his bill with reference to same."

This bill is approved by the judge who tried the case in Shackelford county. We find no tender of evidence to support the averments of the plea, no proof supporting such plea, and no effort apparently to have said plea submitted to the jury. If said plea was ever filed in the office of the clerk of the Shackelford county district court, it does not appear in the record. If appellant was seeking to have the trial court pass on the proposition of the identity of the transactions surrounding the killing of the two men who were killed, this would clearly have been an effort to invade the province of the jury. We find no error shown in said bill of exception.

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 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 lawyers upon other trials of this case at a time when the Legislature was not in session, and that the attorney for whose absence continuance is now sought, was not then of counsel; also, that said firm still appeared in behalf of appellant, and, in addition, were assisted by an able former district attorney of the district in which the county of prosecution was situated, who was present at the time the continuance was sought. Article 543, C. C. P., states as follows: "The truth of the first, or any subsequent application [for continuance], as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right." This we regard as a legislative expression in recognition of the inherent right of the court to exercise said discretion. Chapter 7, Acts 41st Legislature, supra, does not repeal or attempt to repeal article 543, supra, and, if it had done so, we would still hold that unless the action of the court showed an abuse of discretion, the refusal of such continuance would not appear to be error.

Appellant made what is called a second application for continuance, based on the absence of witnesses. That it should contain all the requisites for a first application, set out in article 543, C. C. P., and "in addition thereto" the requisites named in article 544, C. C. P., is unquestionably true; but this seems to have been overlooked by appellant. Said application does not state the residence of any of the witnesses named. Mills v. State, 83 Tex. Cr. R. 515, 204 S. W. 642. Nor is there excuse set forth for apparent lack of diligence based on the fact that this indictment was returned in 1928, and the first subpœna for these absent witnesses was issued in ...