Frazier v. State
| Decision Date | 27 October 1886 |
| Parties | FRAZIER <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
The conviction was for the theft of Carson's horse, and the penalty assessed was a term of eight years in the penitentiary. The horse was shown by the state to have been taken from the range between the first and fifteenth days of April, and was recovered by Carson through one Kerny early in the following March. Two witnesses testified for the state that they saw the defendant and one Heckman together, on or about April 6, 1886, traveling towards the village of Babyhead, Llano county; the defendant having in possession a horse answering the description of the one described in the indictment. Kerny testified that between April 1st and 15th he bought the horse in question from defendant. Two or more witnesses testified that, while in possession of the horse, defendant claimed to have bought it from a Mexican named Juan or John. One witness testified, for the defense, that he was present and saw defendant buy the horse in question in Kimble county from a Mexican named Juan or John. He testified that the absent witnesses named in the application for continuance were present, and also witnessed the purchase. The application for continuance alleged that the said witnesses, four in number, would, if present, testify to defendant's said purchase of the horse.
No appearance for appellant. Asst. Atty. Gen. Burts, for the State.
Defendant's statement as to what he expected to prove by the four absent witnesses for whom his continuance was sought, is in all essential particulars corroborated by the witness Forehand, who testified in his behalf at the trial. To our minds the statement does not appear either improbable or untrue. As to diligence used by defendant to procure their attendance, the indictment was found on the third of June. Attachment for the witnesses was sued out on the 10th, and was returned on the 14th. When filed in the Llano district court is not stated, but, from the distance it had to travel, we suppose it would take at least a day or so. Say then it was filed in court on the 16th. The trial was on the 18th, two days after. While defendant might have applied for and obtained another attachment, we cannot say, under all the circumstances, that his failure to do so shows an utter want of diligence.
But, aside from this, if the action of the court in overruling the application was the exercise of that ...
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Cruz v. State
...sound discretion. Harris v. State, 18 Tex. App. 287; Irvine v. State, 20 Tex. App. 12; Turner v. State, 20 Tex. App. 56; Frazier v. State, 22 Tex. App. 120, 2 S. W. 637; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. When the facts as stated in the application for continuance are consi......
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...determined not by an arbitrary but by a sound discretion." Cruz v. State, 100 Tex. Cr. R. 190, 272 S. W. 486. See, also, Frazier v. State, 22 Tex. App. 120, 2 S. W. 637; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. In Irvine's Case, supra, the action of the court in refusing a continuance......