McLeroy v. State

• Decision Date: 16 April 1924
• Docket Number: (No. 8282.)
• Citation: 263 S.W. 309
• Parties: McLEROY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 309

263 S.W. 309

McLEROY v. STATE.

(No. 8282.)

Court of Criminal Appeals of Texas.

April 16, 1924.

Rehearing Denied June 25, 1924.

Appeal from District Court, Rains County; Geo. B. Hall, Judge.

Shod McLeroy was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

Rodes & Carter, of Emory, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Rains county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There are a number of bills of exception in the record, each of which has been carefully examined by us. The only one deemed worth while to discuss is that complaining of the refusal of a continuance. Appellant was indicted on the 10th of May, 1923, and tried on July 12th of said year. He asked a continuance because of the absence of Cloud Turner, Efton Turner, and Travis Schrimsher. It is stated in the application for continuance that appellant was arrested the same day the indictment was returned, and that he made bond two or three days later. The first process issued on behalf of appellant was July 3d, which appears from the qualification to this bill of exceptions to have been the day set apart for taking up all criminal cases. The application presented to the clerk on behalf of appellant asking for process for the three witnesses named in the motion for continuance states the residence of each of them to be unknown. It would appear plain that, if the appellant did not know the residences of the witnesses, and could not make such residence known to the clerk who issued the process, little effective effort could be made by the officers in procuring the presence of said witnesses. The application for subpœna stating the residences of said witnesses to be unknown to the appellant was first filed on June 9th. On July 3d another application for subpœna was filed, alleging the residence of the two Turners to be in Rains county and that of Schrimsher in Hopkins county. The case was reset on July 3d for July 12th. On the latter date the process for the Turners had not been returned, and the process for Schrimsher was returned not found. We observe in the statement of facts that witnesses for appellant who knew the Turners stated that they had gone, and said witnesses did not know the point to which they had moved. Appellant himself testified that he did not know where Schrimsher was; that Schrimsher told him he was going to Hopkins county and try to find out where his sister was living, and that he was going to her. These statements made by us show a total lack of diligence on the part of appellant in procuring process for his witnesses, and, further, so indicate such lack of knowledge of the whereabouts of said witnesses as to make it improbable that any kind of diligence could have secured their presence or that same could ever be secured by a continuance. We further observe from the statement of facts that substantially the same testimony expected from Schrimsher was available from two other witnesses who are shown by the testimony for the defense to have been present on the same occasion and at the same time and place as Schrimsher. No effort seems to have been made to obtain the testimony of the two witnesses referred to.

We further mention the complaint of appellant at the refusal of a special charge upon alibi. The court told the jury upon this phase of the case that, if they had a reasonable doubt of the presence of the defendant at the time and place of the manufacture of the liquor as alleged in the indictment, they should acquit. In our opinion this gave to him the entire benefit of a...