Jenkins v. State , 30 Tex. 444 ( 1867 )

Caldwell, J.

We see no error in the record. The indictment is unobjectionable, and charges the offense in the language of the statute. The application for a continuance states, that “he (defendant) can prove by three women that he won the coat he is charged with stealing from another freedman, on the day and about an hour before he was arrested;” and that the names and residence of witnesses are unknown.

This does not comply with the statute, (Paschal’s Dig., Art. 2987,) and is addressed to the discretion of the court. An application for a first continuance, in the terms of the law, relieves the court of its discretion, and the continuance is granted as of course. Dot so when the application is based upon causes not contemplated in the statute. Then the discretion of the court is invoked in view of all the facts.

After trial and conviction, with a full knowledge of all the evidence, the court is better prepared to judge of the relevancy of the cause set up for a continuance, and, if satisfied that injustice has been done, upon motion, a new trial ought to be awarded. (Cooper v. State, 19 Tex., 459.)

The evidence fully sustained the verdict. The defendant was found in possession of the property within three hours after it was stolen. This is prima fade, evidence of guilt; and, unless there is some proof to rebut this presumption, the jury were warranted in so finding.

There being no error, the judgment of the court below is

Affirmed.