Roach v. State

• Decision Date: 28 April 1886
• Citation: 17 S.W. 464
• Court: Texas Court of Appeals
• Parties: ROACH v. STATE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 464

ROACH v. STATE.¹

Court of Appeals of Texas.

April 28, 1886.

Appeal from district court, Hunt county; J. A. B. PUTMAN, Judge.

E. E. Roach was convicted of an assault with intent to murder one H. O. Poindexter, and he appeals. Reversed.

Montrose & Grubbs, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

Appellant had insisted upon a trial. After the state had closed her testimony, which was near noon, and the hour for adjournment for dinner, defendant's counsel asked the court to adjourn, so that they might have an opportunity to confer together as to the course to pursue, one of the counsel having just come into the case as the trial began, which request was refused by the court, and they then placed a witness on the stand, and occupied the time until the adjournment for dinner. When the court reconvened, they presented a motion to the court for a leave to withdraw the announcement of ready for trial, upon the ground of mistake and surprise. It was claimed that, in announcing ready for trial, defendant and his counsel believed that the prosecution was on account of a difficulty between defendant and the same alleged injured party in September, 1884, in which difficulty defendant had shot his antagonist; that he had prepared to meet that charge, and had secured the attendance of his witnesses as to that matter, who would prove that in said affair he had acted alone in his necessary self-defense; that he knew nothing about the transaction as testified to in this case by the state's witnesses, and, consequently, was not prepared to meet and refute the statements made by them, as he could and would do if time were allowed to secure his witnesses, who would establish for him a complete and satisfactory alibi. The court refused to grant the motion. It seems that the motion was not offered to secure a statutory postponement or continuance on the ground of surprise. Code Crim. Proc. art. 568. It is, perhaps, not inappropriate to treat it as a motion of that character. On the motion for new trial, after conviction, the same grounds urged on this motion were again presented and relied on, supported, to some extent, by affidavits. While it is true that the statutory motion for postponement or continuance, based on surprise, is confided to the sound discretion of the trial court, it is none the less well settled that, if the court improperly refuses the postponement occasioned by surprise at the testimony of a state's witness, and on motion for new trial it is developed that the absent testimony was material, the motion should prevail. Hodde v. State, 8 Tex. App. 383; McDow v. State, 10 Tex. App. 98; Childs v. State, Id. 183; Eldridge v. State, 12 Tex. App. 208. The showing made by defendant on his motion for a new trial was clearly a strong equitable one, and, under the very peculiar circumstances of the case, we are of opinion it was error to refuse the new trial. It was a very dark night, and the alleged injured party failed to identify defendant in the first instance, and when close to him, and only claims to have identified him as defendant ran from him, when he, the witness, emerged a...