*1 á!5 Cline v. 1895.] Abe Cline The State. Decided
No. 577. Appeal.—On a for Mew Trial—Continuance—Practice motion 1. Motion trial, application prove an in where an for continuance to alibi is considered for new evidence, the other which showed that the absent witness knew connection with alibi, aрpeal hold, in nothing of defendant’s as stated the the court on will application properly the was overruled. that trial, application where the a continuance is 2. Same.—On a new for appears proposed evidence, it considered in connection the other that witness, therein, testimony probably true, court on of an absent stated application properly hold, that the was will Postponement.—Where, trial, case was called for defendant asked a get witness, postponement until he whom he had made no effort to could by process otherwise, explanation case, or this of the was offered proсess issued, Meld, grossest negligence; for his failure to call for and have and that properly refused. ” Idem and “Hillmer are idem Sonans.—“ Helmer” sonans. from the Court of Tried District Gonzales. below before Spooneb. H. Hon. T. with the
Appellant charged theft of a horse, H. P. рroperty Hilmer, of one and at his trial was convicted, the in the punishment years assessed term ten penitentiary. the State. DAVIDSON, udge. Viewed in of the light motion for anew J trial, refusing for a continuance. Cline, Abe witness, The absent would have Jr., that he was testified, appellant not with time the horse is to have been stolen, and had not seen defendant for ten or more before the theft, and nearly three months аnd knew thereafter, nothing his where of his abouts, nothing connection with the matter one way or He knew nothing appli another. as stated alibi, Besides, up appellant cation. the alibi set was to the effect that County, in De Witt whereas he was Lavaca some distаnce away. probably Hor is true that the other witness’ (Butler’s) evi would dence have been believed had he that testified, up, possession was seen of the stolen horse on August Johnson appellant that sold the horse 27th, show, August when the facts own 22nd to B. the face of his аdmission that he Davis, J. stole 20th. night August the animal on the
In we are unable to revise original indictment, the absence allegation proof there is a variance between point that It urged to the name of the owner. bill regard Eeports. 34th Texas Criminal [Austin^ shows it whereas recоrd that true name accompany indictment does not original be “Hilmer.” The *2 upon error written alleges refused, his Defendant becаuse for H. Yoakum, to attachment to De Witt County, issue expected he he he was by E. whom stated to show that Criswell, of written days August. Yoakum the 21st and 22nd There is on such qualified by found in the The court stat- this bill in De ing: first had attachment issued to Witt Yoakum, “Defendant Montgomery, duly who was attached and appeared, and, defendant’s counsel informed the reaching court, court that prove by he had asked Montgomery he cоuld not fact and expected, him for Levy Jourden, the court to attachment who resided give out expected prove applica- that he to set facts Yoakum; attachment, namely, tion his whereabouts at about the time the taken, and alleged horsе to have been asked court not to call here, until them which the get agreed the case for trial he could court Levy and did until when de- do, not call the case and Jourden came, of get counsel desired the cause he could fendant’s court to do. de- which the refused The fact Criswell, Yoakum, proved prove by witness Anna expected by fendant Criswell Levy.” This record no ef- and also Jоurden shows Boberson, fort to Criswell until at this of the case. There was no any why process reason had process Criswell, issued nor negligence appa- been for or In this the is grossest called issued. postponing and the court not further the case. rent, The is affirmed. judgment Affirmed.
Judges present concurring. all EOR ON MOTION REHEARING. of herein was affirmed. The
On former this term is variance rehearing upon based between owner оf stolen horse out in the indictment and name set on in- proved owner trial. that the the name of such as Concede “Hil- name to be “Hеlmer” alleges owner’s instead “Hillmer,” proved. it is idem Whenever then sonans as mer,” may doing power “the be sounded alike without violence to the names if found the name as stated orthography, of the letters the variant im- name, misspelling be idem sonans with true variance is App., Milontree v. 30 Crim. Foster 151; material.” Texas State, The 2 1 The Texas State, 531; v. The Texas Crim. Goode v. App., State, Henry There State, Crim. v. The 7 Texas Crim. 388. App., 520; App., a'question the name of the owner raised the trial below whether “Hilmer,” “Helmer” or in the indictment was forth contеntion that was “'Helmer.” This motion Blain The v. State. 1895.1 disposed the theory that the name not, as contended, urged by the State. The “Hilrner,” names alike, are sounded and are idem sonans with as the “Hillmer,” name spelled. owner’s
Motion for rehearing
Motion overruled. present Judges all and concurring.
J. N. Blain et al.
No. 538. Decided Facts—Filing Appeal.—A Statement of—Practice facts expiration not filed until after the of the ten allowed after the term will not be appeal. considered Exception.—Objections Bills of not mentioned in exception bills of are *3 to be deemed waived. Bond—Requisite Bail of—Date of Indictment.—The filing date of the requisites not one of the of a given bail appearance bond to an- same. swer 4. Scire Facias—Evidence.—On scire facias trial aon bond, forfeited bail bond, judgment where the State introduced evidence a bail nisi, capias fоr the principal bond, objection and no interposed to the introduction Held, same, that a mistake in the bail bond, as the date of the indictment, was im- material. from the District Court of Gonzales. Tried below before Spooner. Hon. T. H.
This $200 final of on a forfeited bail bond. for the Appeal is Presiding HURT, Judge. prosecuted from judgment final a forfeited bail' bond. Ten was allowed after term facts, which file a time but nоt complied with, and no reason for such want of diligence. statement of not be facts can considered. A bill was reserved, which “That the State was permitted recites: introduce evidence a bond executed these defendants for said an Blain, reciting indict mеnt the District Court filed of Gonzales County day of’ when January, 1893, there was no such indictment filed in ever and a court; judgment nisi, capias defendant Blain; presented an indictment into court on the 12th day January, 1892; when we were cited to answer a bond reciting the in filing an court on the 12th of January, when 1893, there was
Vol, XXXIV. Grim.— 27