123 S.W. 129 | Tex. Crim. App. | 1909
Appellant was convicted in the County Court of Uvalde County on the 28th day of June, of this year, of unlawfully carrying arms, and his punishment assessed at a fine of $100.
The evidence of the State tended to show that at the "Cinco de Mayo" celebration in the town of Uvalde on May 5, 1909, appellant had a pistol and fired two shots from it. That immediately on doing this he gave the pistol to one Pedro Flores and said to him, "Here take this and tell them it is yours and there will be nothing more of it." To prove these facts the State produced Ylario Mayo and Pedro Flores. Appellant introduced three witnesses besides himself who distinctly contradicted the testimony of the State and was to the effect, in substance, that Pedro Flores had fired the pistol and that appellant had no pistol. In rebuttal the State introduced H.P. Graham, who was constable of precinct No. 1 of Uvalde County, and W.R. Hiler, who was deputy constable, both of whom, in substance, testified that appellant had and fired the pistol, and that they recognized him as the person who had done so.
There is only one question raised on the appeal, which is presented in many forms, and that relates to the action of the court in refusing to postpone the case until after supper to permit the issuance of process and await the presence of numerous witnesses named, by whom it was stated that it could be shown that they were acquainted with the general reputation of both Graham and Hiler for truth and veracity, and that this reputation was bad. It is recited in the bill of exceptions that the complaint and information in the case were filed about 2 o'clock p.m. on June 28, 1909; that the trial of same was begun about 2:30 p.m. on same day, and that the State first placed on the stand Pedro Flores and Ylario Mayo and rested, the other witnesses, Graham and Hiler, being at the time and all the time during the trial in the courtroom. That thereupon appellant introduced his witnesses who, with himself, testified that he did not have a pistol, whereupon the defendant rested, and the State then reopened the case and placed Graham and Hiler on the stand. That at this stage of the proceedings the State rested its case; that at the time it was after 7 o'clock p.m. *334 and that the argument of the case had not yet begun. That thereupon appellant's counsel requested the court to postpone the case until after supper for the purpose of allowing them to get the witnesses, who were in the city of Uvalde, and who, it was recited, could have been obtained in ten minutes. The bill further recites that they asked at this time for the issuance of process for these witnesses, tendering a list of same; that the court refused to allow the process to be issued, declined to delay the proceedings, and also refused to have said witnesses brought into court. This bill is allowed with the explanation that while the complaint and information on which the case was tried were filed on the 28th day of June, 1909, that the case really was filed on the 15th day of May, the same year, and that the new complaint and information were allowed for the purpose of inserting additional counts therein. That in the original case the witnesses Graham and Hiler were summoned as shown by a return of the subpoena, and that in the present case, after announcement of ready, the rule was demanded and all the witnesses were brought up and sworn, including Graham and Hiler. That the witnesses were then placed under the rule except Graham and Hiler, who were excused by both parties, and remained in court during the trial. That the State thereupon introduced two witnesses and rested; that the appellant introduced his witnesses and rested; that the State then introduced Graham and Hiler, and that thereupon appellant asked for a recess in order to have subpoenas issued and served on witnesses who were supposed to impeach Graham and Hiler, and that the court refused to grant such postponement.
Article 698 of the Code of Criminal Procedure is as follows: "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice." It has not infrequently been held that where the evidence has been closed, and before argument, it is very much in the discretion of the court to admit other testimony, and that a refusal to do so will not constitute reversible error unless it is shown that defendant is thereby prejudiced. Dement v. State, 39 Tex.Crim. Rep.; Gonzales v. State, 32 Tex.Crim. Rep.; Nalley v. State, 28 Texas Crim. App., 387; Hendricks v. State, 28 Texas Crim. App., 416; Farris v. State, 26 Texas Crim. App., 105; Testard v. State, 26 Texas Crim. App., 260; Timbrook v. State, 18 Texas Crim. App., 1; Nolen v. State, 14 Texas Crim. App., 474; George v. State, 11 Texas Crim. App., 95; Moore v. State, 7 Texas Crim. App., 14; Noftsinger v. State, 7 Texas Crim. App., 301; Phillips v. State, 6 Texas Crim. App., 44; Reardon v. State, 4 Texas Crim. App., 602; Jones v. State, 3 Texas Crim. App., 150. An examination of the cases will disclose that ordinarily where the action of the court in refusing to grant a postponement or to permit the introduction of evidence after the argument has begun, it has been in cases where the *335
failure to produce the evidence was without fault on the part of litigants or their counsel. Such were the facts in the case of Hewitt v. State, 16 Texas Crim. App., 501. In that case, as it appears from the record, the witness tendered, Mrs. Hewitt, was on the night when the case was closed, sick and unable to appear, and that having knowledge of this fact counsel for the defendant there stated to the court that she was unable to appear, but they would offer her testimony the following morning. It is stated as a fact in the opinion that at this time Mrs. Hewitt was sick and unable to attend and testify; that the court and district attorney were so informed. In that case Judge Hurt says: "There was not the slightest circumstance indicating a disposition on the part of counsel for the defendant to impede the progress of the trial or trifle with the court. How the introduction of that evidence at that time could even tend to obstruct or trifle with the due administration of justice, we fail to comprehend." Her testimony affected the merits of the case and was, as is stated in the opinion, of great importance. In the case of Elsworth v. State, 52 Tex.Crim. Rep.,
Finding no error in the action of the court, the judgment of conviction is affirmed.
Affirmed.