Martinez v. State , 144 Tex. Crim. 143 ( 1942 )

Appellant was assessed a penalty of fifty years on a charge of murder. The indictment was returned on the 11th day of June, 1941, and his case was called for trial on the 14th day of July, 1941, at which time appellant filed his motion for continuance based on the absence of a witness who was confined in a hospital with a broken limb. Proper showing was made that the witness had been subpoenaed and that he was unable to attend the trial as a witness. The court overruled the motion and this is presented as the sole ground upon which this court is asked to reverse the case.

In the first place it is doubtful that the importance of the testimony in the case is sufficiently shown by the bill of exception to warrant this court in saying that the trial court abused his discretion. In the absence of an examination of the entire record we will be unable to do so.

The motion itself is fatally defective in that it recites "that this continuance is not sought for delay only." Thus, it is seen the motion does not meet the statutory requirements. Vernon's Ann. C. C. P. Art. 543, Sec. 5; Russell v. State,88 Tex. Crim. 582, 228 S.W. 948; Perkins v. State, 120 Tex. Crim. 399, 46 S.W.2d 672; White v. State, 131 Tex. Crim. 69, 95 S.W.2d 429; Allen v. State, 141 Tex. Crim. 94,146 S.W.2d 384.

Furthermore, in his motion for new trial complaint was made of the refusal of the court to grant such continuance. The State filed contest to this motion to which is attached an affidavit from the absent witness denying that he would give the testimony which appellant sought to have. In consequence of this, appellant's bill of exception fails to present error requiring reversal of his case.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.