Rowland v. State ( 1872 )

Walker, J.

The disposition of this case imposes upon us a profoundly solemn duty. Casper Abram, on the tenth day of last October, was murdered in cold blood. James Rowland and Jesse Reed were indicted; by the grand jury of Titus county, and charged with the deed.

Two inoffensive men, traveling through the country as peddlers, Cohn and Abram, were assaulted by highwaymen. Abram was instantly killed ; Cohn was shot,, struck and stabbed, until left for dead by the roadside,, but recovered from his wounds in time to testify against-one of the murderers.

Reed has not been arrested or brought to trial-Rowland was tried at the November term of the district court for Titus county, and by a jury of his countrymen was found guilty of the murder of Casper Abram, and was condemned to death.

The evidence against him, both direct and circumstantial, was conclusive of his guilt. He appeals from, the judgment of the district court, and assigns two. grounds for error to the rulings.

1. That the court erred in overruling his motion for a change of venue.

2. That the court erred in overruling his motion for a continuance.

Four affidavits.were presented to the court in support of the motion for a change of venue. The court, following the rule laid down in Cotton v. The State, 32: Texas, 640, called upon four other persons, who were examined under oath, and testified to the best of their knowledge and belief, that there was no legal ground for the motion, whereupon the motion was overruled..

On granting a first continuance,, this court has held in a number of cases, that where the affidavit avers a. compliance with the statute, the court has no discretion, in granting or refusing a continuance. (See Hipp v., Bissell, 3 Texas, 18; Hipp v. Hutchett, 4 Texas, 20; Prewett v. Everett, 10 Texas,. 283.) But the statute must be complied with, which in this case was not done. (Article 3987, Paschal’s Digest.) It is not due diligence, nor shall it be so considered, to have caused •to be issued, or to have applied for a subpoena in cases where the law authorizes the issuance of an attachment. The affidavit in this case was defective, and did not bring the party within the statutory rule. The professed object in obtaining the evidence of George Brooks was to prove an alibi; the affidavit sets •out that Brooks resided on defendant’s farm at the time the murder was committed, of which the defendant was charged; and that the defendant was with Brooks all of the day on which it is alleged the mur •der was committed, and especially at the hour when Abram was killed.

Had George Brooks been present on the trial, and sworn to the allegations made in the affidavit, his testimony would have been overborne by the testimony of the State’s witnesses; for they testify to seeing him at different times in the day on which Abram was killed, riding about the country in company with Reed, and at other times by himself.

Colonel A. R. Mitchell testifies that he came to his house after his mare and saddle, and that he also got his, Mitchell’s, gun, which he returned the same day. The witness says he saw both Reed and Rowland on the day of the killing; that Rowland came to his house at seven or eight o’clock in the morning; says he saw Rowland again in the evening, half a mile or so from Mt. Pleasant; that he found his gun at home that evening. He also states that he met Reed on the road, as he left home in the morning for Mt. Pleasant, and that he inquired of the witness for Rowland.

Of course, his honor the district judge could not have known, when a motion for a continuance was presented, what the State’s witnesses might swear to on "the trial; but a reference to the statement of facts has •satisfied us, beyond all doubt, that Brooks’ evidence, if it had been delivered in court before the jury, precisely to the import of that which is set out in the •affidavit for a continuance, could have availed the defendant nothing, and no injustice was done him by the overruling of the motion for a new trial.

We must therefore affirm the judgment of the district court.

Affirmed.