Brannan v. State , 108 Tex. Crim. 418 ( 1927 )

The state has filed a motion for rehearing calling attention to a matter not discussed in our original opinion. An argument in behalf of the state was then on file which presents the point now insisted upon, but it was in a separate document from the brief filed by the state and the document containing the argument was overlooked.

The state insists that the application for continuance — the refusal of which was made the basis of complaint — was in fact a second application for continuance and was fatally defective for having omitted therefrom the statutory requisite demanding an averment that the expected testimony "can not be procured from any other source known to the defendant," hence that the application was properly overruled in the first instance, and being fatally defective formed no basis for complaint when the court overruled the motion for new trial predicated upon denial of the continuance. The court's explanation upon the various bills shows that this case was filed on the 26th day of March, 1926, and upon a trial had in April following that the jury failed to agree upon a verdict; that it was again called for trial on the 24th day of January, 1927, at which time appellant sought a continuance on account of the absence of his wife. The court overruled the application for continuance but granted a postponement to January 31, 1927, at which time appellant presented the application for continuance now under investigation, again basing the request upon the absence of his wife, but not averring that her expected testimony could not be procured from any other source. It is stated in the application that it was appellant's first application. He doubtless so regarded it, but it has been often held to be a subsequent application under the facts stated. Griffith v. State, 62 Tex.Crim. Rep., 138 S.W. 1016; Coffee v. State, 82 Tex.Crim. Rep., 198 S.W. 326; Jeffers v. State, 104 Tex.Crim. Rep., 283 S.W. 785; Ferguson v. State, 101 Tex.Crim. Rep., 276 S.W. 919; Williams v. State, 102 Tex.Crim. Rep., 278 S.W. 1103. In Tinker's case, 99 Tex.Crim. Rep., 269 S.W. 778, it was said:

"The application, being a second request for continuance, is fatally defective in omitting to aver that the testimony expected from the absent witness could not be procured from any other source known to appellant." Subd. 1, Art. 544, C. C. P. (1925).

Such is the holding in Henderson v. State, 5 Tex.Crim. App. 134, where the absent testimony was desired on the question of alibi. For the requisites of a second or any subsequent application for continuance many authorities are collated under Sec. 310, Branch's Ann. Tex. P. C., and in the Notes under Art. 544, Vernon's Ann. Tex. C. C. P., Vol. 1, page 466.

Under the settled law appellant's application for continuance was a second application and fatally defective in omitting one of the statutory requisites. The trial court therefore was justified in overruling it, and the application forms no basis for a complaint in the motion for new trial on account of the denial of the continuance in the first instance. It is apparent from what has been said that we were in error in the original opinion ordering a reversal.

We have examined the bills of exception presenting other questions and find them to be without merit.

From what we have said it follows that the state's motion for rehearing should be granted, the order of reversal be set aside and the judgment of the trial court be affirmed.

Affirmed.

ON MOTION FOR REHEARING BY APPELLANT.