Hickerson v. State, 27253
| Decision Date | 05 January 1955 |
| Docket Number | No. 27253,27253 |
| Citation | 161 Tex.Crim. 140,275 S.W.2d 801 |
| Parties | Cecil Couch HICKERSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Calloway Huffaker, Harold Green, Tahoka, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $100.
In view of our disposition of this case, a recitation of the facts will not be deemed necessary, other than to observe that the arrest occurred at 4:30 p. m. on the day in question. The only witnesses whom the appellant had, other than himself, were people who had seen him at approximately 10:30 a. m. in Lynn County before he left to go to his farm in Terry County and those who saw him at approximately 7:30 p. m. in the City of Lubbock some three hours after his arrest. Each of these witnesses testified that he was not intoxicated.
In his motion for continuance appellant swore that the witness L. D. Pemberton, a resident of Terry County, would testify that he saw the appellant shortly after 4:00 p. m. on the day in question, some 30 minutes before appellant's arrest, and that the appellant was not intoxicated. The motion further recites that Pemberton had agreed to be present at appellant's trial (this being a misdemeanor and compulsory process not being available) but that, due to inclement weather, his commercial airline flight from Ft. Worth to Lubbock had been delayed but that he would be available in court the following day.
Appellant's motion for new trial is supported by the affidavit of the witness Pemberton.
From bill of exception No. 20 it is apparent that the trial court overruled appellant's motion for continuance without reading the same.
While it is true that the overruling of a motion for continuance will not normally call for a reversal of the conviction, we are convinced that the trial court herein, in view of the above facts, fell into error in not granting the motion for new trial.
The judgment is reversed and the cause remanded.
On State's Motion for Rehearing
We are cited to the recent case of Richardson v. State, 156 Tex.Cr.R. 513, 244 S.W.2d 222, in support of the State's contention that appellant failed to use diligence to secure his witnesses in that he caused no subpoena to be issued.
It is evident that we failed to take cognizance of the fact that Richardson was charged in the county court with a misdemeanor and that the statutes provide no procedure for obtaining the issuance of a subpoena out of the county court for an out county witness.
Articles 475 et seq., Vernon's Ann.C.C.P., as originally enacted (Acts 1st Called Session 1897, p. 58), apply alone to the district court, grand jury and examining courts.
Resort may be had to the original enactment if there be doubt as to the meaning of the compiled s...
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Hickerson v. State, 27914
...thirty days in jail and a fine of $250. Upon a former trial, that conviction was reversed and remanded by this court. Hickerson v. State, Tex.Cr.App., 275 S.W.2d 801. In that case there was a sharp dispute under the facts as to appellant's According to the testimony of two highway patrolmen......
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Bludworth v. State, 30780
...in article 463." The answer to the question proposed has been definitely determined by this court in the case of Hickerson v. State, 161 Tex.Cr.R. 140, 275 S.W.2d 801, wherein we held that Art. 475, Vernon's Ann.C.C.P., applies only to the district court, the grand jury, and the examining O......