Hughes v. State ( 1885 )

White, Presiding Judge.

One provision of our statute is that “ the truth of the first or any subsequent application (for a continuance), as well as the merit of the ground set forth therein, and its sufficiency, shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right.” (Code Crim. Proc., art. 560.) Its truth and merit may both be questioned and determined by the facts stated on the face of the application, just as the diligence may be. But, in assigning reasons why it was overruled, by way of explanation to the bill of exceptions saved to the ruling, no reason can be sound or should be stated which could only arise or be known from and after the other evidence elicited on the trial. An application acted upon in advance of the trial can, in the nature of things, only be determined from facts as they are then known. (Pinckord v. The State, 13 Texas Ct. App., 468.) Upon the motion for a new trial, and when the application is considered a second time in connection with the evidence, the court may then properly assign such additional grounds as to materiality and truth as the evidence authorizes; but the court evidently cannot know such facts in advance of the trial, and they can furnish no additional reason for the ruling on an application for continuance, in avoidance of the bill of exceptions reserved to the ruling. The object of an explanation or qualification of a bill of exceptions is to make plain the matter objected to, or give the reasons as they existed at the time of the ruling which caused the ruling to be made.

In this case several reasons for overruling appellant’s application for a continuance are stated by the learned judge. Presumably he must have allowed and approved the bill after the trial, for some of the reasons are based upon facts as they “ appeared from the evidence on the trial.” . But, these reasons aside, the ruling of the court was correct in so far as diligence was shown by said application. Sufficient diligence is not shown.

The indictment was filed January the 9th, 1885. Defendant was served with a copy on January the 10th, and on the 14th he applied for an attachment for the witness Grigsby, to Bowie county, stating that the witness resided in Bowie county. On the 4th of February, the day before the trial, the defendant applied for and obtained another attachment for his witness Grigsby, alleging that he resided in Tarrant county. His application does not show when he learned that his witness was a resident of Tarrant and not of Bowie county. He might, for aught that appears, have known the fact in ample time after his first attachment, issued to Bowie, to have enabled him by proper diligence to have had the witness served and in attendance at the trial.

There is no merit in any of the other matters complained of, and the judgment is affirmed.

Affirmed.

[Opinion delivered April 29, 1885.]