*1 many We have laid down the cases that there where rule any question propriety is as to the refusal of a contin- witnesses, uance because of absence of and there be a con- viction, would look to the motion for trial in new order to —we themselves, ascertain whether the witnesses whose absence —for sought, give testimony continuance was in fact al- —would leged to material be and absent in the we often held that where no effort is made in connection motion given for new trial to show that the witness would have testimony expectant, stated as new trial would be denied. —a application here, We think the rule has trial overruling committed no error in the motion for trial. Finding record, judgment no error af- will be firmed.
ON MOTION FOR REHEARING. Presiding
MORROW, —The court was affirmed in an April 28, rendered 1937. At- rehearing, tached to the motion for May filed this court on 13, 1937, affidavit, bearing date, is an the same attempted bring into the record facts which were not before original hearing. this court on the The affidavit mentioned is relied rehearing. as a basis for the motion for It cannot purpose, used for that any purpose nor for other purport as it part does to be a of the record which prepared judge. the trial court and certified the trial rehearing The motion for evidently prepared on as- sumption that question the affidavit could be considered part However, this court as a of the record. in that view is mistaken. An effort the record affidavit, present instance, such as was done is of no avail.
Finding nothing justify case, which would a reversal of the the motion for is overruled.
Overnded. Ex Parte Paul H. Sloan. May 12,
No. 19097. Delivered 1937. *2 opinion states the case. Antonio, Nami, Herman G. San Austin, Davidson, Attorney, Lloyd for the W. State’s KRUEGER, appeal from an order of —This is an Judge McCrory, District Court Hon. Criminal W. W. remanding Texas, of Bexar au- county held him the sheriff said ready him agent to receive Florida was thorized convey him to said State. January, day of that on the appears from record requi- Florida issued D., 1937, A. the Governor requesting him of this State the Governor sition warrant for the arrest warrant to issue sheriff, Sweat, or his to Rex him appellant, and to surrender Florida, agent designated for the State deputy, as the charge of to answer the said State conveyed him to this State January the day robbery. the 21st On it has been he states his executive H. Paul Florida the Governor known to made charged by Sloan stands affidavit and information with the of- alleged fense of State, committed in etc. County, by sheriff virtue of said jail arrested and confined him in to await the arrival demanding State. There- after on applied said date to the Hon. W. W. Mc- Crory, judge of said corpus. a writ of habeas prayed ordered the writ to be issued as for and set the day January, thereof for the 22nd at which time offered in evidence the the Governor Florida, the executive warrant the Governor of together county with the affidavit of solicitor County Duval, for the State of informa- charged appellant tion furnished himto with the offense of etc., robbery, various all of which —to *3 necessary Thereupon reasons which deem we do not to state. proceedings suspended the court at the the the State following day, known at which time the State made appellant possession of to the court in and to the that it was by another executive warrant of this State. issued the Upon receiving ap- said information filed his second plication corpus duly was for a writ of habeas which appel- and which two the court —to the cases consolidated ruling lant and demanded a on his first application for a Appellant which was denied. then filed the proceedings could obtain the' until he papers Secretary copies of all of State certified upon and executive warrant documents which the ex- that the because the would disclose he believed same legal authority. ecutive warrant not issued sufficient excepted and application was denied —to which brings this court exception bill matter before the review. his discretion
It our the court did not abuse grounds as- declining grant application in because the to the suspi- signed merely application on belief in the are based papers charge that said cion definite is made No the irregular authorize to or documents were or insufficient any direct In the absence issuance of the executive warrant. positive allegation irregularity by the constituted and reg- prevails acts were presumption their authorities the as then offered ular the law. and accordance with form. due evidence the second executive by R. S. copy affidavit made of an also offered a certified justice peace Lawrence before a and district num- County, charging ber four of Duval offense deadly weapon of a a use copy justice certified of the warrant of arrest peace. The State then offered A. B. a witness Cruse as who testified that he at lived Jacksonville Florida; appellant before; that he had seen that he him on saw night morning February 9th city testimony. Jacksonville, Appellant offered no Florida. Upon appel- the conclusion of the the court remanded lant to of the sheriff Florida.
delivered to the State gave Appellant excepted proceedings and notice appeal this court. to as inasmuch It seems to be the contention of irregular original he was warrant was deemed legal authority discharge to the State was without entitled a as charge same to a based issue second executive warrant finally disposed proceedings of. until been the former had Stallings v. Supreme States in case the United Splain, S., 339, said: U. if charged may, felony in person with a one
“A peace arrested, by a another, without he flees detained is found and be officer to enable the reasonable time * * * made. illegal, original had Stall-
“If the arrest and discharge, if final hear- ings not be entitled his would *4 detaining legal for ing corpus proceedings cause in the habeas proceedings. through removal institution of him had arisen ground for exists appears it that sufficient Where original arrest discharged defects prisoner will not be or commitment.” precluded insti- us It occurs to it deemed
tuting proceedings if additional originally instituted. those or advisable order committed no error was Having the conclusion reached inis court cause, in the trial of said things affirmed. all has Appeals Commission opinion of the Appeals Judges of Criminal
been examined approved by Court. REHEARING. MOTION FOR ON HAWKINS, a motion for —In postponement should renews his contention court was granted by the trial court have been opinion contrary. holding remain of We error requested too- grounds upon hearing. delay in the justified a further speculative to have rehearing is overruled. The motion
Overruled. Templeton v. E. W. January 13, 1937. Delivered
No. 18573. February 17, 1937. On the Merits