Henderson v. State

• Decision Date: 01 January 1858
• Citation: 22 Tex. 593
• Parties: FRANCIS X. HENDERSON v. THE STATE.
• Court: Texas Supreme Court

22 Tex. 593

FRANCIS X. HENDERSON

v.THE STATE.

Supreme Court of Texas.

1858.

An affidavit for a second continuance of a cause, on account of the absence of a material witness, setting out as the diligence used, that a subpoena had been issued after the commencement of the term, and seven days before the trial, and returned the next day after issued, not found; Held, not to be sufficient diligence, notwithstanding the affidavit stated, in addition, that the witness was only temporarily absent, without the procurement or consent of the affiant; and that, had he known of the witnesses intended absence, he would have endeavored to have taken his deposition.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

Indictment charging Francis X. Henderson with burglary and larceny in one count; and with theft from a house, of three bracelets, and other articles named, belonging to Margaret F. McLane, in the second count; found March 16th, 1858. Continued by the defendant, at the same term of the court, on 29th day of March, 1858.

At the fall term, 1858, on the 4th day of October, the defendant moved for a continuance, for want of the testimony of Harvey Richies, E. F. King, and O. J. Simenski; he averred that he had used due diligence to have said witnesses in attendance, at this term of the district court, an attachment having issued August 18th, 1858, and returned September 3d, 1858, not found; that he had a subpoena issued for said King, Richies, Simenski and Father Parissote and Lackey, on 27th September, 1858, which was returned on the next day, not found. Expected to prove where he was, on the night he is charged with having committed the offense, and to establish fully and conclusively an alibi; he being in company with said King, Richies and Schlessinger, until after four o'clock on said morning; and with Father W. Parissote, from four o'clock until eight of the same morning. That said witnesses were not absent by consent or procurement of affiant; the application for continuance was not made for delay; and defendant knew of no other witnesses by whom he could prove the facts he expected to prove by said absent witnesses; that he had reasonable expectation of procuring their attendance, at the next term of the court; that King resided in this county; Richies, Parissote and Simenski, were temporarily absent; did not know at present where they were. Had affiant known of their absenting themselves, would have endeavored to have had their depositions.

The application for continuance was refused, to which the defendant excepted. Plea, “not guilty.”

E. E. McLane, whose house was charged, in the indictment, to have been entered, and whose property was stolen, testified on the trial that, on the night of 31st December, 1857, there was a party at his house, which broke up, and he and his family retired to bed about three o'clock in the morning. The articles charged to have been stolen, were stolen from his house, and many of them from his bed room, between the hours of three and six o'clock in the morning. The bracelets his wife had worn during the evening, and took them off in her bed chamber, when she retired. A short time after defendant's arrest before the magistrate, defendant's counsel brought to witness, at his house, many of the articles stolen, in a bundle containing articles belonging to other persons, stolen about the same time. He gave me no explanation as to how he came by the property. The bracelets in court were the same which were stolen from...