Mullin v. State, (No. 12918.)
| Decision Date | 22 January 1930 |
| Docket Number | (No. 12918.) |
| Citation | 24 S.W.2d 423 |
| Parties | MULLIN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Gray County; W. R. Ewing, Judge.
J. M. Mullin was convicted of assault with intent to murder, and he appeals. Affirmed.
Douglass & McConnell, of Pampa, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Offense, assault with intent to murder; penalty, two years in the penitentiary.
Appellant was the proprietor of a restaurant. The injured party was his former employee, who claimed that appellant owed him, and that, in a difficulty ensuing between the two, when he attempted to make collection, he was stabbed three times by appellant. Appellant's version of the matter, without detailing same, entitled him, if believed, to an acquittal. He offered to corroborate his version by witnesses who were alleged to be absent, and the court's action in forcing him to trial without these witnesses and in overruling his motion for new trial is the only question presented by the record which we deem worthy of discussion.
When the case was called on April 4, 1929, appellant presented his first application for a continuance or postponement. The case was postponed until the 29th day of April, 1929, at which time appellant presented what he denominates his "First Amended First Application for a Continuance." Though appellant calls this his first application for a continuance, it was in fact a subsequent application, under the authorities. Griffith v. State, 62 Tex. Cr. R. 642, 138 S. W. 1016; Bowen v. State, 65 Tex. Cr. R. 46, 143 S. W. 187.
The application recites that W. D. McGuire, who resides in Panhandle, Carson county, Tex., and Paul Stanton, who resides in Borger, Hutchinson county, and Elmer Stretch, who resides in Borger, Hutchinson county, were absent; that appellant "caused to be issued a subpœna on or about the 1st day of April, A. D. 1929," for the witness W. D. McGuire, and that he caused another subpœna to be issued to Carson county and another to Potter county on the 10th day of April, 1929, and that he caused a subpœna to be issued on the 1st day of April, 1929, for Paul Stanton, which was duly sent to the sheriff of Hutchinson county and returned with the report that Paul Stanton had but recently gone to White Deer, Carson county; that a subpœna was then sent to the Carson county sheriff, but that no return had been made on same before April 10, 1929, and that, being informed that said Paul Stanton had gone to Young county, he caused a subpœna to be issued to Young county on the 19th day of April, 1929, which subpœna was returned by the sheriff of said county with the indorsement that said witness could not be found; that he caused a subpœna to be issued for Elmer Stretch on the 1st day of April, 1929, which subpœna has never been returned "by the sheriff of said county." These constitute his allegations showing diligence. To the application he attached purported copies of subpœnas issued for said witnesses. We note that in one of these the names of W. D. McGuire and Elmer Strick (presumably Stretch) appear in a subpœna issued to Gray county, where neither of said witnesses resided; that this subpœna was shown to have been filed on the 2d day of April, 1929; that another subpœna is shown to have been issued for W. D. McGuire to Carson county, dated April 19, 1929, which bears no file mark and no return. A copy of another subpœna for Paul Stanton appears, addressed to the sheriff of Young county, which was filed with the indorsement aforesaid. These are all the subpœnas attached.
On motion for new trial, the district attorney filed a contest on appellant's right for a continuance, among other things, for a lack of diligence. In overruling the motion for new trial filed by appellant, the court recites that he heard evidence thereon. Such evidence has not been brought up for review. In the absence of this, the law compels us to presume that such...
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...1957, writ ref., n.r.e.). The burden is on one moving for a continuance to show that he is entitled to it. See Mullin v. State, 114 Tex.Cr.R. 225, 24 S.W.2d 423 (Ct. of Crim.App., 1930) and 13 Tex.Jur.2d 61, Continuance, Sec. The evidence before the trial court would justify the trial court......
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France v. State
...C.C.P. Hence the court was justified in overruling the same. See Brannan v. State, 108 Tex.Cr.R. 418, 1 S.W.2d 279; Mullin v. State, 114 Tex.Cr.R. 225, 24 S.W.2d 423; Wheeler v. State, 118 Tex.Cr.R. 358, 42 S.W.2d Appellant challenges the sufficiency of the evidence to sustain his convictio......
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Wenck v. State, 25010
...on April 3, 1950, was a second application for continuance. See Winfrey v. State, 122 Tex.Cr.R. 480, 55 S.W.2d 1046; Mullin v. State, 114 Tex.Cr.R. 225, 24 S.W.2d 423; Wheeler v. State, 118 Tex.Cr.R. 358, 42 S.W.2d We are unable to agree that the trial court abused his discretion in overrul......