208 S.W. 928 | Tex. Crim. App. | 1919
Appellant was convicted of theft and allotted five years in the penitentiary.
The only question presented for revision is the contention that appellant was deprived of counsel in violation of his legal rights. The matter came up on motion for a new trial in the court below, find there was a bill of exceptions reserved; Looking over this bill of exceptions, it occurs to us that the trial judge in his qualification fairly states the facts and the matter presented.
The indictment was returned at the September term, 1917. The case was set for trial in December, 1917, but was continued by operation of law until the January term, and was then continued until the March term, 1918. On October 1, 1917, the defendant gave bond, and from that time until his trial he was at liberty. The case was set for trial March 20, 1918, when defendant appear-' ed in court without an attorney, and stated he had no attorney and was not ready for trial. He said that he had employed an attorney at Wichita Falls and had paid him some j money, but the attorney had later advised
This is practically a correct statement of the situation as we understand this record. •Under this we are of opinion appellant does not bring himself within the rule that would require a reversal of this judgment for want of counsel. The whole matter seems to depend largely upon the fact that, after resetting of the case for March 25th, appellant’s counsel had been employed in a county court civil case to aid Mr. Hamilton, the leading lawyer in that case, to try it. That the civil case begun trial on the 23d, which was Saturday, and for some reason was set over for further consideration until 2:30 p. m. on Monday, the 25th. Appellant’s case was called Monday morning, and when the hour of 2:30 arrived the attorney for appellant absented himself from the courtroom to participate in the trial of the civil case in the county court. Under these circumstances we are of opinion that appellant was not deprived of his counsel in such way that it would bring it within the rule that would authorize or require this court to reverse. This is not brought within the rule laid down in Dougherty v. State, 33 Tex. Cr. E. 173, 26 S. W. 60, and Kuehn v. State, 47 Tex. Cr. E. 637, 85 S. W. 793.
It is not necessary to decide the question of the authority of the district judge to compel the attendance of the attorney in this case until the completion of the trial. He did not so compel, nor undertake to do'so. The attorney voluntarily left the courtroom to engage in the trial of a civil case in the county court. Appellant was not deprived of his counsel by reason of sickness, or any matter that could not be overcome, at least reasonably overcome. Taking the whole showing made, we are of opinion that appellant has not been deprived of the right of counsel as is contemplated by the law to cause a reversal of this judgment.
This being the only question in the record, the judgment will be affirmed.