King v. State

• Decision Date: 22 May 1912
• Citation: 148 S.W. 324
• Parties: KING v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 324

KING v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1912.

Rehearing Denied June 12, 1912.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Harvey King was convicted of robbery, and he appeals. Affirmed.

Seidemann & Short, of Seguin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was indicted, tried, and convicted for robbery, and his penalty fixed at 18 years in the penitentiary.

This trial was had on April 28, 1911. It seems a previous trial of the case was had at the prior term of court.

Appellant's main contention is that the evidence is insufficient to sustain the conviction. The statement of facts contains more than a hundred typewritten pages. We have carefully gone over and considered the statement of facts, in view of appellant's contention. It would serve no useful purpose, and is unnecessary, to give the testimony. The evidence is clearly sufficient to sustain the verdict.

Appellant contends that the court erred in overruling his second application for a continuance on account of the absence of A. W. Templeton. The record does not show what was the ground of the first continuance, or application therefor. The application shows that a subpœna was issued for the witness on December 29, 1910, and was executed by service on January 28, 1911. The court at which the trial was had convened April 17, 1911, and adjourned May 6, 1911. The application does not show whether or not the witness was in attendance on the court at the convening thereof. It does not show when this cause was called and set down for the day on which it was tried. It does show that the subpœna was returnable on April 24, 1911. It does not show that any other subpœna or attachment was issued for said witness. We think that sufficient diligence is not shown to secure the attendance of the witness. Mixon v. State, 36 Tex. Cr. R. 66, 35 S. W. 394; Skipworth v. State, 8 Tex. App. 135.

Even if the diligence was sufficient, the court did not err in overruling the application. Appellant made this one of the grounds of his motion for new trial. The state contested this. The appellant, on the trial, sought to show that when the prosecuting witness Volmar was assaulted and robbed it was too dark and too late for him to have recognized and identified the appellant as the robber, and claimed that the absent witness would testify that he saw Volmar going from town to his home about or after dark, and that he recognized him only by the electric lights then burning. The court heard evidence on this contest, and the state produced the affidavit of the witness, which showed that, while he saw some party going out of town the night Volmar was assaulted and robbed, he could not and did not recognize such person as Volmar. The court heard all the testimony on this point and overruled the motion for new trial. Under the circumstances, we think it clear that the court correctly overruled the motion.

Again, the only other testimony of said witness which appellant claimed he could show was that on the next morning after the robbery he saw Volmar, and at that time Volmar gave him a description of the robber, and claimed that he knew the negro who did rob him and had seen him repeatedly, though he did not know his name, and that on this trial his testimony was different on that point, showing that he had not seen the appellant before, but positively identified him on this trial as the party who assaulted and robbed him. At most, this testimony could have been used for impeaching purposes only; and it is the settled law of this state that a continuance will not be granted to procure witnesses for that purpose. Garrett v. State, 37 Tex. Cr. R. 198, 36 S. W. 1017, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088. It is needless to cite other cases.

The court did not err, as complained by appellant, in not giving a charge to the effect that, because appellant's witness Ernest Roberts testified on cross-examination that he was the same man a complaint was filed against, charging him, in connection with appellant, with this offense, etc. This question and answer of the witness appears to have been asked of this witness only for the purpose of identifying him. The fact that...