Payton v. State

• Decision Date: 04 March 1896
• Citation: 34 S.W. 615
• Parties: PAYTON v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 615

PAYTON v. STATE.

Court of Criminal Appeals of Texas.

March 4, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

John Payton was convicted of theft, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of personal property over the value of $50, and his punishment assessed at two years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal.

Appellant made a motion for a continuance which was overruled, and he saved an exception thereto. He also brought the same matter forward in a motion for a new trial, which was overruled by the court, and he reserved his exception. Appellant shows that he had subpœnas issued for A. G. Holt, Will C. Faught, and one Howard, all residents of Dallas county, but it shows, however, that the process had not been returned, and that he did not know what effort had been made to procure service. In such contingency, it was the duty of the appellant to present a motion in court requiring the officer to make return of said process, so that he could see what had been done. The application also fails to state any facts expected to be proved by said witnesses, but only a conclusion. He states that he expects to prove by said witnesses that he was not in the store of Thomas Goggan & Bro., Dallas, Tex., at the time of the theft. Whether it was expected to be shown by these witnesses that they were in the store at the time the theft occurred, and that appellant was not then in said store, or whether it was proposed to be shown by them that, at the time of the said theft, they were in another and different place, and that appellant was there also, is not stated.

Appellant also claimed a continuance on account of the absence of one Dunn, who, he alleges, was duly served; but, in the same breath, he says that the return shows said witness to be temporarily absent from the county of Dallas, his permanent home. Under this statement we are at a loss to know whether the witness was in fact served with process, or whether there was a failure to serve him on account of his temporary absence. Appellant shows that he expects to prove by said witness that the money upon his person at the time of his arrest was money paid to him a short time before said arrest, and not the money alleged to have been taken from the pocketbook of Doda Lennox, the prosecuting witness. In regard to this, it is sufficient to say...