146 S.W. 186 | Tex. Crim. App. | 1912
Appellant was indicted, tried, and convicted of theft of a horse, and
It is seen that appellant, at the time he announced ready for trial, was fully aware that Gunter was under an indictment for an offense growing out of the same transaction for which he was being tried; and article 771 of the Code provides that persons charged as principals, accomplices, or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, and appellant is presumed to have been aware of that' fact when he announced ready for trial. In the affidavit, nor in the bill of exceptions, it is not claimed that appellant was surprised by any testimony adduced by the state, and under such circumstances we do not think the court erred in not permitting the announcement to be withdrawn. The other case was pending in a different court, over which the district judge of Jones county had no control, and one cannot trifle with the court. He cannot announce ready for trial, proceed with the trial as far as the record shows this case had proceeded, and then, without any allegation showing surprise at the testimony, or any other good reason being given, ask a continuance for testimony that he knew he could not obtain at the time he announced ready for trial. It has been frequently held by this court that an application of this character should not be granted, when it would work a continuance of the case. Evans v. State, 46 Tex. Cr. E. 74, 80 S. W. 374, and cases cited. And where, as in this instance, the affidavit was not filed until after the state had introduced its testimony, the court did not err in overruling it.
We have carefully reviewed all the grounds in the motion for a new trial. Some of the criticisms of the charge are without merit, and others are rather hypercritical; but the charge, when taken as a whole, is not subject to the criticism contained in the motion, and especially so when we take into consideration the special charges, given at the request of defendant.
The judgment is affirmed.