Mills v. State

• Decision Date: 05 June 1918
• Docket Number: (No. 5055.)
• Citation: 204 S.W. 642
• Parties: MILLS v. STATE.
• Court: Texas Court of Criminal Appeals

204 S.W. 642

MILLS v. STATE.

(No. 5055.)

Court of Criminal Appeals of Texas.

June 5, 1918.

Rehearing Denied June 28, 1918.

Appeal from District Court, Rusk County; Daniel Walker, Judge.

Ernest Mills was convicted of murder, and he appeals. Affirmed.

Futch & Tipps, of Henderson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.

The evidence, without any contradiction, by several witnesses showed that appellant stabbed deceased in the head with a knife and killed him without any justification or provocation. The circumstances of the stabbing and killing were such as to be sufficient to show that the killing was with malice aforethought by appellant.

The only question in the case is whether or not the court erred in overruling his motion for a continuance and in overruling his motion for new trial on that ground.

The motion for continuance was made because of the absence of Dr. Barton. Dr. Barton was not present when the stabbing occurred and knew nothing about the facts surrounding the parties at that time. In order to attempt to show the materiality of the doctor's testimony, he alleged that the eyewitnesses for the state would testify that deceased was somewhat in a stooping position preparing to get down on his knees when appellant stabbed him in the head, and that the theory of the state on the trial would be that the wound did not penetrate straight in, but in a kind of slanting position. That he expected to prove by this doctor, who was called to see deceased the next day after the stabbing, that if it had been made while deceased was in a stooping position the wound would not have penetrated straight in as it did, but would have to be slanting toward the head of deceased. Whether the deceased was standing straight or stooping at the time appellant stabbed him could not have been very material, and such an inference from the doctor's testimony, even if he had testified as claimed, would not have been material in the case. The stab, without any doubt, killed the deceased. Appellant stabbed him, and whether the knife blade went in straight or slanting could make no difference. However, if it could be conceded that the testimony of the doctor would in any contingency have been material, no reversible error is shown.

The record in this matter shows this state of fact: The killing occurred the last of April, 1917. The examining trial was held the day after the deceased died, at which appellant and his attorneys were present, and the eyewitnesses of the killing for the state then all testified. Of course, appellant and his attorneys were fully advised what each of these eyewitnesses would testify. The indictment was returned June 28th. The case was to be tried on July 17th. At that time said witness Dr. Barton lived in Rusk county near where the killing occurred. He was subpœnaed by appellant to attend the trial on July 17th. The motion for continuance does not state that said witness attended the court at that time or at any other time. It states that the cause was not called for trial on that date. Why it was not, or what disposition was then made of it, was not alleged. The law is that "it devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law." And the state is not required to show a want of diligence in opposition to a continuance.

"Nothing is presumed in aid of an application for a continuance, but the burden is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments. Cantu v. State, 1 Tex. App. 402; Murray v. State, Id. 417; Buie v. State, Id. 452; Bowen v. State, 3 Tex. App. 617; Robles v. State, 5 Tex. App. 346." Walker v. State, 13 Tex. App. 647, 648.

Again:

"An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, * * * and it must appear that all the means provided by law were resorted to by the defendant to obtain the testimony and were resorted to promptly." Barrett v. State, 18 Tex. App. 67.

Again:

"The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments." Long v. State, 17 Tex. App. 129.

Again:

"If there is a lack of diligence, apparent from the application or otherwise," the law's "mandate is inexorable and the trial must proceed." Skipworth v. State, 8 Tex. App. 139.

The statute (article 530, C. C. P.) enacts:

"It shall be understood that a witness refuses to obey a subpœna: (1) If he is not in attendance on the court on the day set apart for taking up the criminal docket or any day subsequent thereto, and before the final disposition or continuance of the particular case in which he is a witness. (2) If he is not in attendance at any other time named in a writ."

Judge White, in section 600 of his An. C. C. P., says: "Continuance is properly refused always where there is a want of diligence" — citing a considerable number of cases to that effect. Giles v. State, 66 Tex. Cr. R. 642, 148 S. W. 317.

The motion for continuance alleged that said witness, Dr. Barton, is now "located at Camp Logan base hospital, Harris county, Texas." The law is:

"An application for a continuance must state the residence of the witness; and, when it states that the witness is temporarily absent, it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Cr. R. 105 ; Vanwey v. State, 41 Tex. 639;...