Hughes v. State , 95 Tex. Crim. 65 ( 1923 )

Appellant raises but two points, the first being that we erred in sustaining the action of the lower court in overruling his application for continuance. The bill of exceptions taken to the refusal of the continuance shows that complaint was then made of such refusal only on the ground that the witness Flourney was not present. By Flourney appellant expected to prove communicated threats. From the statment of facts we observe that a number of other witnesses testified to communicated threats equally as serious as those claimed to be desired from the absent witness. This testimony was not controverted and the State attempted to make no issue upon the proposition of threats having been made or communicated. In McDowell v. State, 69 Texas Crim. 545, 155 S.D. Rep. 521, we held it not error to refuse a continuance for the absence of witnesses to testify concerning undisputed matters. The same principle applies here. While it is generally held that the question of cumulative testimony will not be considered in passing upon the refusal of a first application for continuance, still where the testimony for the defense shows the establishment without dispute of the issue to which the absent testimony would go, we think the question becomes one then to be left largely to the discretion of the trial judge in passing on the motion for new trial. When a motion for new trial is based upon the absence of witnesses for whom a continuance was asked, the trial court is necessarily given much discretion in determining the question as to whether or not had the absent testimony been present it would likely have produced a different result. Viewing the action of the trial judge in the instant case in this light and taking into consideration the fact that the testimony for the accused showed without controversy that threats were made and communicated, we would not feel inclined to hold that he should have granted a new trial because of the overruling of the continuance, nor that he exceeded his discretion in concluding that had the absent testimony been present it would not have produced a different result. Nor do we doubt the lack of showing of diligence for such witness.

The only other question complained of is that when a witness was on the stand the overcoat worn by deceased was shown him and he was asked in reference to a bullet hole. It is not shown that there was any blood on the coat and we know of no case in which this court has reversed for the sole error of the production of a garment worn by the deceased at the time of the homicide. The record shows that when appellant objected to any questions regarding the coat, same were sustained. We do not believe that in such case it is possible for any injury to have resulted to the accused.

A number of affidavits appear attached to appellant's motion for rehearing which we can not consider because upon matters which should have been presented in connection with the motion for new trial.

The motion for rehearing will be overruled.

Overruled.