Dove v. State

• Decision Date: 13 May 1896
• Parties: DOVE v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 648

DOVE v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1896.

Appeal from district court, Palo Pinto county; J. S. Straughan, Judge.

John Dove was convicted of rape, and appeals. Affirmed.

E. W. Nicholson, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of rape, and his punishment assessed at death, and he prosecutes this appeal.

1. The only bill of exceptions in the record is as to the action of the court in overruling the motion for a continuance. The application states that it is "for the want of the testimony of John Whitesides, who is now in the Indian Territory temporarily, but who resides in Montague county, Texas; and Tom Cooper and Exa Cooper, who reside in Montague county, Texas; and Jim Turner, reputed to reside in Dallas county, Texas; and John Ogle, who is reputed to be in the Indian Territory; A. J. Dove and R. Long, who reside in Jack county, Texas. That process for each of said witnesses has been issued and returned, `Witnesses not found.' That process for witnesses Tom Cooper, Exa Cooper, Jim Turner, and John Ogle was issued on the 4th day of March, 1896, the same day that a copy of the indictment in this cause was served on defendant. That process was issued for A. J. Dove and A. Long to Jack county, Texas, on the 9th day of March, 1896. That process was issued for John Whitesides on the 4th day of March, 1896, and returned blank." The application states that process was issued for these witnesses, but does not state the character of the process, whether subpœna or attachment, It should have done this. It also should have stated, not simply that the process was issued, but the facts that showed how it was issued and forwarded to the proper officers. The application states that the process was returned, and refers to the same, and makes it a part of the application, but no exhibits of said process are found in the record. As to the witness Ogle, it is not stated where he resides, but states that he is in the Indian Territory, and of course no process could have compelled his attendance. And it is also stated that John Whitesides is now in the Indian Territory temporarily, but does not state how long he had been there, or when he went from Montague county. As to the witnesses Dove and Long, for whom it is said process was issued to Jack county, it appears that the same was not issued until the 9th day of March, and no reason is shown why process for these two witnesses was not issued on the 4th of March, when the process for the other witnesses was issued. It is stated in the application that the defendant "expects to prove by witnesses Tom Cooper, Exa Cooper, Jim Turner, and John Ogle and John Whitesides, A. J. Dove and A. Long that the defendant was in Clay county continuously during the month of August, 1895, and at the time the offense in question was alleged to have been committed, and was not and could not be at the place and at the time alleged in the indictment that the offense is alleged to have been committed." This is not the statement of any fact, but a mere conclusion. The residence of each of these witnesses is shown not to be...