Gordzelik v. State , 157 Tex. Crim. 68 ( 1952 )

ON MOTION FOR REHEARING

MORRISON, Judge.

We have again examined the court’s qualification to appellant’s Bill of Exception No. 1 and fail to find therein any matters of fact not contained in the bill itself.

Appellant challenges our holding that no error is shown in the trial court’s failure to grant a continuance notwithstanding the fact that no affidavit of the missing witness was attached to either the motion for continuance or the motion for new trial, and no reason is shown why the same has not been done.

Such motion for continuance is addressed to the discretion of the trial court, and we must review his ruling thereon in the light of what he had before him.

In Randolph v. State, 145 Tex. Cr. R. 526, 169 S. W. (2d) 178, we said:

“The absence of any affidavit from Keller would justify the trial court in concluding that he would not have given such testimony had he been present. We said in Trotti v. State, 135 Tex. Cr. R. 196, 118 S. W. (2d) 309, 311: ‘In her motion for a new trial, she complained of the action of the court in overruling her application for a continuance, but no affidavit by the absent wit-' ness is attached to the motion showing that the witness, if he had been present, would have given testimony material to her defense; nor has she satisfactorily accounted for her failure to obtain such affidavit. See LaFitte v. State, 122 Tex. Cr. R. 239, 54 S. W. (2d) 133. Under the circumstances, the trial court could have reached the conclusion that the absent witness would not have testified as claimed by her.’ ”

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.