Mancha v. State

• Decision Date: 01 December 1909
• Citation: 123 S.W. 129
• Parties: MANCHA v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W. 129

MANCHA v. STATE.

Court of Criminal Appeals of Texas.

December 1, 1909.

Appeal from Uvalde County Court; T. M. Milam, Judge.

Juan Mancha was convicted of unlawfully carrying arms, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Uvalde county on the 28th day of June of this year of unlawfully carrying arms, and his punishment assessed at a fine of $100.

The evidence of the state tended to show that at the "Cinco de Mayo" celebration in the town of Uvalde on May 5, 1909, appellant had a pistol and fired two shots from it; that immediately on doing this he gave the pistol to one Pedro Flores, and said to him, "Here, take this, and tell them it is yours, and there will be nothing more of it." To prove these facts the state produced Ylario Mayo and Pedro Flores. Appellant introduced three witnesses, besides himself, who distinctly contradicted the testimony of the state, and was to the effect, in substance, that Pedro Flores had fired the pistol, and that appellant had no pistol. In rebuttal the state introduced H. P. Graham, who was constable of precinct No. 1 of Uvalde county, and W. R. Hiler, who was deputy constable, both of whom, in substance, testified that appellant had and fired the pistol, and that they recognized him as the person who had done so.

There is only one question raised on the appeal, which is presented in many forms, and that relates to the action of the court in refusing to postpone the case until after supper to permit the issuance of process and await the presence of numerous witnesses named, by whom it was stated that it could be shown that they were acquainted with the general reputation of both Graham and Hiler for truth and veracity, and that this reputation was bad. It is recited in the bill of exceptions that the complaint and information in the case were filed about 2 o'clock p. m. on June 28, 1909; that the trial of same was begun about 2:30 p. m. on same day; and that the state first placed on the stand Pedro Flores and Ylario Mayo, and rested— the other witnesses, Graham and Hiler, being at the time, and all the time during the trial, in the courtroom; that thereupon appellant introduced his witnesses, who, with himself, testified that he did not have a pistol, whereupon the defendant rested, and the state then reopened the case, and placed Graham and Hiler on the stand; that at this stage of the proceedings the state rested its case; that at the time it was after 7 o'clock p. m., and that the argument of the case had not yet begun; that thereupon appellant's counsel requested the court to postpone the case until after supper, for the purpose of allowing them to get the witnesses, who were in the city of Uvalde, and who, it was recited, could have been obtained in 10 minutes. The bill further recites that they asked at this time for the issuance of process for these witnesses, tendering a list of same; that the court refused to allow the process to be issued, declined to delay the proceedings, and also refused to have said witnesses brought into court. This bill is allowed, with the explanation that, while the complaint and information on which the case was tried were filed on the 28th day of June, 1909, the case really was filed on the 15th day of May of the same year, and that the new complaint and information were allowed for the purpose of inserting additional counts therein; that in the original case the witnesses Graham and Hiler were summoned, as shown by a return of the subpœna, and that in the present case, after announcement of ready, the rule was demanded, and all the witnesses were brought up and sworn, including Graham and Hiler; that the witnesses were then placed under the rule, except Graham and Hiler, who were excused by both parties, and remained in court during the trial; that the state thereupon introduced two witnesses, and rested; that the appellant introduced his witnesses, and rested; that the state then introduced Graham and Hiler; that thereupon appellant asked for a recess, in order to have subpœnas issued and served on witnesses who were supposed to impeach Graham and Hiler; and that the court refused to grant such postponement.

Article 698 of the Code of Criminal Procedure of 1895 is as follows: "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice." It has not infrequently been held that where the evidence has been closed, and before argument, it is very much in the discretion of the court to admit other testimony, and that a refusal to do so will not constitute reversible error, unless it is shown that defendant is thereby prejudiced. Demant v. State, 39 Tex. Cr. R. 271, 45 S. W. 917; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Nalley v. State, 28 Tex. App. 387, 13 S. W. 670; Hendricks v. State, 28 Tex. App. 416, 13 S. W. 672; Farris v. State, 26 Tex. App. 105, 9 S. W. 487; Testard v. State, 26 Tex. App. 260, 9 S. W. 888; Timbrook v. State, 18 Tex. App. 1; Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247; George v. State, 11 Tex. App. 95; Moore v. State, 7 Tex. App. 15; Noftsinger v. State, 7 Tex. App. 301; Phillips v. State, 6 Tex. App. 44; Reardon v. State, 4 Tex. App. 602; Jones v. State, 3 Tex. App. 150. An examination of the cases will disclose that...