McCulloch v. State

• Decision Date: 04 December 1895
• Parties: McCULLOCH v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 230

McCULLOCH v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1895.

Appeal from district court, Coke county; J. W. Timmins, Judge.

George McCulloch appeals from a conviction. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant in this case was convicted of the theft of a horse, and given five years in the penitentiary. He assigns as error the overruling of his motion for a continuance. The record shows that the indictment was presented in court on the 4th day of November, 1894; that a trial of this case was had at the November term, 1895; so that between the term of court at which the indictment in this case was found, and the trial, there intervened the April term, 1895, of the court. The application for a continuance in this case does not show that it was a first application, and there is nothing in the record to authorize the court to indulge the presumption that it was a first application. If it was a first application, this should have been shown. As a second application, it was not sufficient, in that it did not show that the testimony for which the continuance was desired could not be procured from any other source. This should have been done. Conceding, however, that this may be treated as a first application, then it fails to comply with the rules of law on the subject, in that the allegations as to what the absent witnesses would swear are of entirely too general a character. The application stated that it was expected to be proved by two lady witnesses that the appellant was at the house of J. G. McCulloch during the entire day and night on which the offense is said to have been committed. The application in this regard should have shown such facts as an indictment for perjury could be predicated on. It should have been shown that these witnesses were at said house during the whole of said day and night, and that they had opportunity to see and know the facts expected to be proved by them. From the record, we gather that the offense charged against appellant was committed on that particular Monday evening or night, and, in order that the testimony of said witnesses should appear on the face of the application to be material, some facts should be stated that would show that said witnesses had opportunity to know that appellant was at the house of said J. G. McCulloch during the whole of said evening and all of that night. As to the witness Montieth, the allegation is still more general, for it is merely stated, as to him, that he was present with the appellant on the day the offense is said to have been committed. How long he was present with him does not appear, nor is it stated at what place he was with the appellant,— whether at the house of said McCulloch, or at some other place,—and it was not...