Lead Opinion
Appellant was convicted for driving a motor vehicle on the streets of Cleburne, Texas, at a time when he was intoxicated, his punishment being assessed at imprisonment in the penitentiary for one year.
On the night of September 20, 1936, appellant, whilе driving a truck on Wilhite Street in the City of Cleburne collided with a city bus and tore the side out оf the bus.
It would be useless to set out in detail the evidence; that for the State shows appellant to have been intoxicated at the time. Appellant did not testify, but his witnesses say he was not intoxicated. This fact issue was settled by the jury in favor of the Stаte.
Appellant complains because the court overruled a seсond application for continuance based upon the absence of the witnesses Robbins and Downs. We understand from the record that a first continuance had been granted appellant because of the absence of twо other witnesses. In this second application appellant set up that hе could prove by Robbins and Downs that a few minutes before the accident they were with appellant and that he was not intoxicated. The court qualifies the bill by stаting that the evidence sought was cumulative of that of *217 Edna Hamilton who was in the truck with аppellant at the time of the collision and who testified that appellant was not intoxicated.
The evidence in the record shows that at a time from twenty to forty-five minutes before the accident appellant was in a cafe with Robbins and another man — presumably Downs — and that both appellant and Robbins were drunk, and that when they left the cafe Robbins got down and áppellant was seeking help to get him off the street and that Downs was with appellant and Edna Hamilton in the truck, Rоbbins having been left at the house lying across the bed. Two rules stated in Branch’s Ann. Tex. P. C. with refеrence to the denial of. a continuance become applicable here. In Sec. 319, p. 188, the text states:
“It is not in every case, however, wherе the absent testimony is material and probably true, that the appellate сourt will revise the ruling of the trial judge in denying a continuance and a new trial to defendant. It is only in a case where, from the evidence adduced on the trial, the appellate court is impressed with the conviction, not merely that the defеndant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probably that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted.”
In Section 322, page 189, is found the following text:
“If substantially the same testimony as that which is absent wаs produced on the trial, the discretion of the court in denying a continuancе will not ordinarily be revised on appeal.”
We are of opinion that the facts do not present a case where the discretion of the trial court shоuld be criticized. Likewise, this court is not impressed with the conviction that if the absent testimony had been before the jury under the facts here presented it is reasonably probable that a more favorable verdict for appellant would hаve resulted.
The judgment is affirmed.
Affirmed.
Addendum
ON MOTION FOR REHEARING.
After re-examining the record we express our views in the language оf Judge O. S. Lattimore as embraced in the opinion he prepared herein shоrtly prior to his death, but which was not taken into consultation. We quote his language аs follows:
“Appellant insists that the evidence does not meet the re *218 quirements of the law.. The facts show him to have been operating a сar, while intoxicated, on a street in the city of Cleburne, spoken of by some оf the witnesses as North Wilhite Street ánd by others as Wilhite Street. We regard the name of the'street as sufficiently shown.
“The records in the office of the Secretary of State of the State of Texas show that a copy of the charter of the сity of Cleburne was filed there October 10, 1914, of which fact we take judicial knowledgе. This sufficiently shows Cleburne to be an incorporated city. See Blackman v. Statе,
Not being able to agree with appellant, the motion for rehearing is overruled.
Overruled.