Roberts v. State

• Decision Date: 24 May 1899
• Citation: 51 S.W. 383
• Parties: ROBERTS v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 383

ROBERTS v. STATE.

Court of Criminal Appeals of Texas.

May 24, 1899.

Appeal from district court, Williamson county; R. E. Brooks, Judge.

Add Roberts was convicted of murder in the second degree, and appeals. Affirmed.

W. F. Robertson, for appellant. Warren W. Moore, Dist. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years, and he appeals.

The record contains two bills of exception, but there is no complaint made to the charge of the court in said bills, nor in the motion for new trial. We think the court's charge is correct, and in the light of this record the same could not be reviewed. Code Cr. Proc. art. 723 (amended by Acts 25th Leg. p. 17); English v. State (Tex. Cr. App.) 45 S. W. 713.

Appellant's first assignment of error complains of the action of the court overruling the motion to postpone the trial. The motion was made upon the ground of the absence of George Phillips and Joe Patman. The indictment was filed July 29, 1897. The homicide occurred July 13th. After the homicide, appellant disappeared for two months. About September 13, 1897, defendant was arrested, and was tried on January 27, 1899. In his application he states, as to the witness George Phillips, that he applied for a subpœna January 26, 1899 (over a year after his arrest, and one day before the trial). As to the witness Joe Patman, it appears that process was served upon this witness on July 21, 1898, or six months before the trial. This process commanded the witness to appear at the former term of the court, and the record fails to show whether the witness obeyed or disobeyed this process. We do not think the application shows any diligence. Furthermore, the record showing that this is the third application, and the testimony of the witnesses being cumulative of that introduced upon the trial, and it further appearing that the application is defective, in that the same does not state two of the statutory requirements, to wit, that the witnesses were not absent by the procurement or consent of appellant, and, second, that the application was not made for delay, we do not think the court erred in refusing to grant the same. Pullen v. State, 11 Tex. App. 89; White v. State, 9 Tex. App. 41; Peck v. State, 5 Tex. App. 611; Zumwalt v. State, Id. 521.

Appellant's second bill of exceptions complains of the action of the court in refusing to grant appellant time in which to prepare and file a motion for the continuance of his cause because of the absence of certain witnesses, and because of the absence of his attorney D. W. Odell, whom defendant had just learned was sick in Austin. This bill is qualified by the court, as follows: "That when this case was called at 10 o'clock, January 27, 1899, defendant, by his attorneys, asked time to prepare a motion for continuance, which was granted them. The court waited on them from that time until 1:30 p. m. the same day, when they presented what they called a `motion for postponement,' which was, by the court, overruled. Defendant's counsel then asked for time to prepare a motion for continuance. The court thereupon stated to them that they would be allowed a reasonable time in which to prepare a motion for continuance, and that they could use so much of the motion for postponement, if they desired, as was applicable. The motion for postponement having set out at length all the facts which they desired to set out in motion for continuance, except some of the statutory grounds, said motion for postponement could have been so changed as to comply with the statutory grounds for continuance in a few minutes, but counsel for defendant refused to do this. They were then asked what time they desired, when they stated they desired the rest or the day. This was 1:30 p. m. The court stated they would not be allowed the rest of the day, but would be allowed a reasonable time to prepare such motion. Counsel refused to proceed with the preparation of said motion, and stated they would stand on the record as made, and proceeded with said trial, without objection." In view of the explanation of the court to his bill, we are at a loss to understand how any possible injury was done appellant...