Russell v. State

• Decision Date: 02 March 1921
• Docket Number: (No. 5950.)
• Citation: 228 S.W. 948
• Parties: RUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 948

228 S.W. 948

RUSSELL v. STATE.

(No. 5950.)

Court of Criminal Appeals of Texas.

March 2, 1921.

Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.

O. L. Russell was convicted of manufacturing intoxicating liquor in violation of the Dean Law, and he appeals. Affirmed.

Keeney & Dalby, of Texarkana, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bowie county of manufacturing intoxicating liquor in violation of the Dean Law (Acts Second Called Session, 36th Legislature, p. 228), and his punishment fixed at confinement in the penitentiary for one year.

When the case was called appellant asked for a continuance to obtain the testimony of several witnesses, most of whom appear to be for direct or indirect impeachment of the state's main witness, one McCarty. This character of testimony is ordinarily not considered sufficient to justify a continuance. Branch's Anno. Penal Code, § 324. The testimony of the absent witness Enscore was stated to be that he was familiar with the pasture, where the state's testimony would seek to locate the illicit still claimed to have been used by appellant in this case, and that witness would testify there was nothing of the kind there. Three witnesses for the state bore positive testimony that on a day which they fixed at about March 1, 1920, they visited a still which appellant was running in or near a pasture of his, and that with said equipment appellant was making whisky. Appellant categorically denied these facts. One Berry Brown swore for appellant that during January, February, and most of March, 1920, he lived on appellant's place, was very familiar with the pasture in question, was in said pasture nearly every day and especially along about the 1st of March, building fences, clearing up the land, going after the cows and other stock, and that he had never seen any sign of a still there. This witness, together with a number of others, testified that adjoining the home and residence of appellant was an open Bermuda grass pasture, and that along about the 1st of March, and before the leaves came out on the trees, a man anywhere in said pasture would be seen by people going along the public road or at or near appellant's house. Many of these witnesses testified that they were familiar with said pasture at said time and passed by there frequently and saw no still or any signs thereof. Appellant's wife also testified that she was familiar with said pasture and that at that time there was no still there.

The term of the trial court at which appellant was convicted did not expire until July 3d. The trial was early in May. It was stated in the application for a continuance that witness Enscore was temporarily absent from his home in Texarkana at the time of the trial. No affidavit of said witness as to what his testimony was or would have been was obtained during said term. The application is defective, in that it is stated that it is not made solely for delay. This does not comply with the statute. Subdivision 5, art. 608, C. C. P. It is also statutory that the truth of the first or any subsequent application for continuance is addressed to the sound discretion of the trial court, and, even if the application conformed to the statute, we would not hold its refusal arbitrary, and reversible error, unless the record was in such condition as to lead us to conclude that had the witness been present the result would have been different. The testimony of the state's witnesses was direct and positive as to the presence of the still and appellant's connection therewith, while aside from the testimony of appellant himself all of the evidence for the defense was more or less circumstantial. The state's witness McCarty located this still in question as being in a pine thicket a short distance from the pasture about which most of the state's witnesses testified. Said application contains the admission that appellant had not talked with the state's witness, but had good reason to believe that he was going to locate said still by his testimony in a certain pasture. The statement, therefore, as to the fact that the witness Enscore, if present, would deny the presence of any still at that point was necessarily a conclusion of the appellant and his attorneys, who prepared said application. After careful consideration of the entire testimony, both for the state and appellant, we are unable to believe that the testimony of another man to the effect that he was familiar with the pasture of appellant about the 1st of March, and that there was not a still there, would have affected the result, nor do we think the trial court exceeded his discretionary power in passing on appellant's motion for new trial, to hold that the absent testimony, viewed in the light of the record, was probably not true, or that same would not have produced a different result. Browning v. State, 26 Tex. App. 432, 9 S. W. 770; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826; section 34 of notes to article 608, Vernon's C. C. P. As an additional reason for this ruling appellant was arrested on April 29th and no subpœnas were applied for until May 3d. We do not think the fact that the state's witnesses were not indorsed on the indictment...