Hughes v. State , 86 Tex. Crim. 611 ( 1920 )

The appellant in this case was convicted of felony theft, in the Criminal District Court of Dallas County, and given two years in the penitentiary.

The case comes before us without a statement of facts, and but two bills of exceptions. The first of these is to the action of the trial court in overruling appellant's motion for a continuance, asked for the purpose of obtaining the testimony of one Ollie Lanksford. An examination of the record discloses that the application for continuance fails to disclose when the subpoena for said witness was issued. No date was mentioned in the application, and no copy of said subpoena was attached. Legal diligence is not shown by appellant, and the motion was properly denied. In the absence of a statement of facts we cannot decide as to the materiality of the testimony of the absent witness.

Appellant has also a bill of exception to the testimony as to statements and admissions made by him, as recited in the body of the bill, while under arrest and unwarned. The trial court states in his explanation approving said bill of exceptions that at the time of making such statements or admissions, the appellant was not under arrest, and that said statements led to the finding of the alleged stolen property; in which latter event we have always held such statements admissible, even though made under arrest and without being warned.

The charge of the trial court and the indictment seem to be in conformity with law.

No error appearing, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING March 3, 1920.