Thomas v. State, 17 Tex. Ct. App. 437

Thomas v. State

17 Tex. Ct. App. 437 | Tex. App. | 1885

White, Presiding Judge.

Appellant’s application for a continuance was properly overruled. It failed in three of the statutory requisites: 1st. It did not state the residences of the witnesses nor that their residences were not known. (Code Crim. Proc., art. 560, sub-div. 1; Vanwey v. The State, 41 Texas, 639.)

2d. It did not state that there was no reasonable expectation that the attendance of the witnesses could be secured during the term by a postponement of the trial to a future day of the term. (Code Crim. Proc., art. 560, sub-div. 6; Strickland v. The State, 13 Texas Ct. App., 364.)

*4403d. It did not state the facts which were expected to be proved by the absent witnesses. (Code Crim. Proo., art. 560, sub-div. 3.) The statement is that “ defendant expects to prove himself clear by said witnesses.” A general allegation that the witness will prove the defendant’s innocence will not suffice.” (Huebner v. The State, 3 Texas Ct. App., 458; Grissom v. The State, 8 Texas Ct. App., 386.) It is a well established rule of practice that nothing is presumed in aid of an application for continuance. (Cantu v. The State, 1 Texas Ct. App., 402; Murray v. The State, 1 Texas Ct. App., 417; Buie v. The State, 1 Texas Ct. App., 452; Bowen v. The State, 3 Texas Ct. App., 617; Robles v. The State, 5 Texas Ct. App., 617.) Strict compliance with the exact requirements of the Code is necessary. (Skipworth v. The State, 8 Texas Ct. App., 135; Anderson v. The State, 8 Texas Ct. App., 542.)

It is insisted that certain evidence was adduced by the State upon the trial which was illegal and inadmissible.- If so, the record fails to show that defendant either objected to its introduction at the time or moved subsequently to have it withdrawn from the jury. Without objection at the time or a subsequent motion to withdraw it, and a bill of exceptions reserved to the ruling of the court in admitting it over objection, or refusing to withdraw it on motion, this court will not revise the admission of evidence. (Code Crim. Proc., art. 686; Alderson v. The State, 2 Texas Ct. App., 10; Brown v. The State, 2 Texas Ct. App., 115; Owens v. The State, 4 Texas Ct. App., 153; Allen v. The State, 4 Texas Ct. App., 581; Roberts v. The State, 5 Texas Ct. App., 141; Hatch v. The State, 6 Texas Ct. App., 384; Lanham v. The State, 7 Texas Ct. App., 127; Pippin v. The State, 9 Texas Ct. App., 269; Stewart v. The State, 9 Texas Ct. App., 321.)

One of the grounds in defendant’s motion for a new trial is that “he was hurried into trial in the absence of his counsel.” There is nothing affirmatively shown by the record supporting this allegation, and it moreover appears from the evidence of one of defendant’s own witnesses that the defendant is a lawyer.

As to the charge of the court, no exception was taken to it by defendant, nor were any additional instructions asked by defendant. It presented the law of the case. The evidence is amply sufficient to sustain the verdict and judgment, and in' our opinion the judgment should be affirmed.

Affirmed.

[Opinion delivered January 21, 1885.]