John Greenwood v. The State, 9 Tex. Ct. App. 638

Hurt, J. The appellant was convicted of murder of the first degree, and his punishment assessed at confinement in the penitentiary for life. There are but two questions presented for our consideration : 1. Was there érror in the action of the court below in overruling defendant’s motion to continue? 2. Did the court err in overruling the motion for a new trial ? By an examination of the record, we find that the subpoena was issued and served on the 21st of August; that the case was reached on the 25th, and was then set for the 8th of September; that on the 8th of September the defendants severed, W. M.

Burton being put on trial, who was jointly indicted with appellant; and that this case was called and the trial commenced on the 13th of September. Now, by the motion it appears that the witness remained in the county up to the 5th of September, and that appellant learned on the 13th (the day the trial began) that witness had left on the 5th for Cooke County.

It does not appear that the witness was at court either on the 25th of August or on the 8th of September, The plainest principles of diligence require that the defendant should have looked to this matter, and if the witness (though served) was not present at either of these times, to have had an attachment issued for him. If this course had been pursued on the 25th (the witness then being in the county, and remaining there until the 5th of September), the probabilities are that the witness would have been attached, and his attendance at the trial secured.

If these steps had been taken at any time from the 25th until the 5th, the same result very likely would have been obtained. It is true that an attachment on the 8th of September would have been too late to have caught the witness in that county (the witness having left on the 5th) ; yet, if sent to Cooke County on the 8th, the officer could have probably attached and returned with the witness by the 13th of September.

But it may be urged that defendant learned first on the 13th of the departure of the witness for Cooke County, To this it is replied that if defendant had used diligence on the 25th of August and the 8th of September, he in all probability would have been successful with his attachment, or learned of his absence or whereabouts before the 13th. The motion fails to show any inquiry for the witness on the 25th, or at any other time up to the 13th, the day of trial. This, to us, shows the highest degree of negligence. The court did not err. in overruling the defendant’:' motion to continue the case.

The next question for our decision is, “ Did the court below err in overruling appellant’s motion fora new trial? ” There are but two grounds urged by appellant in this motion : 1. The action of the court below in overruling his motion to continue. 2. That the evidence fails to support the verdict of the jury. The motion for a new trial was for the testimony of bui one witness — to wit, Butts.

The appellant failing to use proper diligence to secure his attendance, the court below acted correctly in regard to said motion, and, if properly overruled upon that ground, the action of the court cannot be made the basis for a new trial. The remaining ground of the motion is, “ Does the evidence support the verdict of the jury?” After having given the statement of facts a most thorough inspection, we are of the opinion that the evidence adduced and the case as made by the facts in this case, as shown by the record, amply support the verdict.

The counsel, neither in argument nor in their very able and earnest brief, have called in question the charge of the court; nor, indeed, is it susceptible of just criticism, it being a most excellent application of the law to the facts and nature of the case. There being no errors apparent of record, the judgment of the court below must be affirmed, which is accordingly done. Affirmed,