Shackelford v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 138
• Parties: DICK SHACKELFORD v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 138

DICK SHACKELFORD

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Johnson. Tried below before the Hon. A. J. Hood.

There is nothing in the facts of this case, which are somewhat voluminous, that make their statement necessary to a proper understanding of the opinion.

George Clark, Attorney General, for the State.

DEVINE, ASSOCIATE JUSTICE.

In this case appellant was convicted on the charge of having stolen a mule, the property of Ambrose House.

The defendant's motions in arrest of judgment and for a new trial being overruled, it is brought before us on six bills of exceptions, and the following assignments of error: 1st. That “the court erred in overruling defendant's motion for a continuance.” “2d. The court erred in the admission of and rejection of testimony, and to the ruling in regard to the closing speech of the district attorney, all as shown in the bills of exceptions.” “3d. The court erred in giving instructions to the jury, and refusing the instructions asked by defendant.”

The first assignment of error requires a reversal of the judgment. The defendant was indicted on the 12th day of August, 1874. On the 26th of the same month the cause, among others, was called for such action “as to the court seemed lawful.” When defendant's counsel moved the court to grant a continuance until the next term, the affidavit in support of the motion stating that Elliott and Russell, residents of Comanche county, and D. B. Blackburn, a resident of Parker county, and E. Golding, a resident of Johnson county, were material witnesses for his defense; that he had used due diligence to procure their attendance by causing attachments to issue from the district clerk's office on the day of his indictment by the grand jury; that they were duly mailed; that, not content with this diligence, his attorney sent one Van Meredith with additional attachments to Comanche county; that the witnesses were temporarily absent; that the attachment to Parker county for Blackburn was returned not served; that he was informed a second attachment had been sent for Blackburn by order of the court, and not yet returned; that a subpœna had been issued for Golding, a resident of the county, a week before, and not served, Golding being temporarily absent in Hill county, and facts were stated that, if shown on the trial, would have been material to his defense.

The affidavit stated all and more than is required on the first application for a continuance, and nothing appears from the exception taken that shows what was stated was not true. The only question raised was the supposed want of diligence in securing the attendance of the witnesses. The sheriff and magistrate who committed the accused stated he had been committed, in default of a thousand dollars' bail, to the county jail on the 28th of March, 1874; that he remained for safe-keeping in Hood county jail until the indictment was presented, when he was removed on that day to the jail of Johnson county, on which day his application for attachments were made and the same were issued. These facts do not show a want of due diligence.

The fact that the court offered to postpone the trial of the case for two weeks, and issue attachments and send the sheriff or his deputy for the witnesses, and that defendant's counsel refused the offer and declared that his affidavit for a continuance was ready to be presented, cannot defeat his legal right to a continuance on this his first application, when all the demands of the code were fully complied with and no fact is shown to discredit or falsify his statements.

The objection to the admission and refusal of evidence, so far as the same is referred to in the second and third bills of exceptions, requires no further notice than the statement that the time the prisoner had been in jail and the amount of bail required were irrelevant matters, and should not in ...