Skaro v. State

• Citation: 43 Tex. 88
• Parties: PETER SKARO v. THE STATE.
• Decision Date: 01 January 1875
• Court: Supreme Court of Texas

43 Tex. 88

PETER SKARO

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Nueces. Tried below before the Hon. T. C. Barden.

Peter Skaro was indicted for an assault with intent to kill and murder one Aaron Bennett. The defendant was confined in jail from the date of arrest, and with no counsel, until the day before his trial. He had applied upon proper affidavit made before the clerk for an attachment for one Laparo, but through misapprehension of that fact stated in his application for continuance that he had made affidavit for an attachment before the sheriff. The materiality of the testimony expected from the absent witness was fully stated. The application was overruled. After the jury had been selected to try the cause, defendant's attorney discovered that the affidavit for attachment had been made before the clerk, and renewed his application, stating that fact. This application was also refused. The absent witness was expected to prove an alibi, which was, in fact, sworn to by one witness (Parker) on the trial. Verdict, guilty, and punishment fixed at two years' confinement in the penitentiary.

James S. McCampbell, for appellant.

N. G. Kitrell, for the State.

REEVES, ASSOCIATE JUSTICE.

If the defendant had set out in his application for continuance the diligence which had been used, its sufficiency could not have been doubted. The judge held that the application came too late, after the jury had been selected and sworn to try the case.

The evidence of the absent witness appears to have been material to the defense, and when the attention of the court was called to the fact that an attachment had been issued, it would have been a proper exercise of discretion to have permitted him to make the correction, by stating the diligence which had been actually used, and stating the reason why it was omitted to be made in the application for continuance.

The application of defendant's attorney for an attachment for the witness, after the case was called for trial, seems to have been made under a misapprehension of the facts, and without knowing that the attachment had been issued and returned. He had only been employed the day before the trial commenced, and, as explained in his affidavit made after the cause had been tried, he did not find the attachment among the papers in the case. The defendant, who was confined in jail up to the time of the trial, appears to have made the proper affidavit for the attachment before the clerk,...