*1 Cоuch Cecil Hickerson v. State 27,253. January 5, Rehearing State’s Motion for Denied Mаrch Green, Callotvay Tahoka, Harold appel- Huffaker lant. Austin, Dice, Attorney, Wesley State’s for the state. MORRISON, Presiding Judge. driving intoxicated; punishment, while
The offеnse jail days fine of and a $100.00. disposition case, this of our a recitation of
In necessary, other deemed than to observe that facts will not be day р.m. question. the had, at 4:30 on occurred the arrest appellant himself, othеr only whom the than witnesses approximately at had seen him 10:30 a.m. in people who were go Terry County County he left to his farm in Lynn approximately p.m. city sаw him 7:30 those who after his Each of three hours arrest. these some not intoxicated. that he was testified swore that the wit- In his Terry County, a Pemberton, testify resident would L. D. ness day shortly p.m. he 4:00 saw the after arrest, and that question, minutes befort some 30 *2 intoxicated. The motion further recites the was not agreed appellant’s trial to that Pemberton had be being being compulsory process (this not a misdemeanor weather, available) that, due to inclement commercial but flight delayed had airline from Ft. Worth to been but following day. in the he would that be available Appellant’s supported by for affidavit motion new trial is the witness the Pemberton. Exception apparent From Bill of No. 20 is that the trial it court overrulеd motion for continuance without read- ing the same. overruling it
While that the true of a for motion con- normally will not conviction, tinuance call for a reversal of the herein, are we convinced that the trial court in the faсts, granting above fell error in into the for motion new trial. judgment is reversed and the cause remanded.
on state’s motion
WOODLEY, Judge. are cited We State, the recent case of Richardson v. 156 Rep. 513, 222, Texas Cr. 244 support S.W. 2d of the state’s diligence contentiоn that failed to use to secure his subpoena that he no caused to be issued. cognizance It is evident that we failed to take of the fact chаrged county that Richardson the court with a misde- provide procedure meanor ing the statutes no for obtain- subpoena county the issuance of a out court for an out county witness. C.C.P., seq., originally enacted, (Acts. Article 475 et аs 1st 1897, p. 58) apply court, Session Called alone to the district examining grand jury and сourts. may original Resort be had enactment if be there doubt meaning comрiled State, of the
toas statutes. Stevens v. 70 Rep. 565, Texas Cr. S.W. 505. State, Rep. 644, 594,
In Cothrеn v. 139 Texas Cr. S.W. 2d county we said that witness absent was out of the and not subpoena county amenable to a out issued of the court. opinion State, Insofar as the in Richardson v. Texas Cr. Rep. 513, holding may 2d be S.W. inconsistent with the original herein, opinion in our it is overruled. Exception entirely to Bill of
Our reference No. 20 was not and will be withdrawn. accurate pointed judge,
The error out Bill No. 20 is that presence jury, severely in the of the criticized counsel for not having a written trial; grant announced declined
state counsel time *3 writing prepare acting it; their before threat- appearance under which ened to forfeit bond liberty pre- and annоunced that motion for continuance orally writing could be later reduced to sented but would be overruled. stating requires trial was in error in that the law motion fоr continuance to be state an- agree that in the interest of time this should
nоunces. We be done fact that is aware of the a material will where counsel witness finally However, appear. for the defendant the time learn witnesses are is after an- whether his state has upon to make and he is called his nounced announcement. called jury announcements are such before the Whether appear, time in panel appear- or а sufficient advance of is to its delay, judge ing prevent discretion. motion for is overruled. The state’s Longoria Ex Parte Eliseo 27,422. March 1955.