Bice v. State , 55 Tex. Crim. 529 ( 1908 )

This case comes before us on motion for rehearing.

Appellant in his motion criticises the fact that we stated in the original opinion that the evidence "clearly convinces this court that there has been a studious effort to secret the witness Dew Gully in order to secure continuance." Appellant was indicted in August, 1905, and the trial took place on June 25, 1907. It is quite apparent from an inspection of the record, as stated in the original opinion, that this witness was absent with the connivance and consent of his mother and appellant, and this suggestion is not controverted, to our minds, by the filing now in this court of the affidavit of the witness Dew Gully, in which affidavit he states that he is now residing in Deberry, Panola County, Texas. This affidavit can not be considered by this court as a part of any record, nor can we allude to same in discussing the application and the record before us, but it does lend to our minds additional reason for holding that he studiously avoided the trial until now.

The second ground of the motion complains that the court erred in holding that appellant claimed and insisted that the third application for continuance was only a second application. That appellant only contended that the third application should be considered as a second application. The opinion did not say what appellant was contending, but said in view of the fact that the second application had been overruled by the lower court and that this court had held that said ruling was error, that this application thereby became a third application.

The fourth ground of the motion complains that this court erred in holding that the testimony of Dew Gully is cumulative. If it be conceded that this is true, still the motion for rehearing should not be granted because of the first ground stated in overruling same, to wit: that there seemed to have been a studious effort on the part of appellant to keep the witness away from court, or at any rate the record clearly shows that there was no reasonable probability of securing the attendance of the witness by a continuance of the case at the time the application for continuance was made, nor was there, at the time the opinion in this case was written by this court, any reasonable expectancy of securing the attendance of the witness. The record in this case shows that the witness was related to appellant; his mother living in the town; that he had been a dutiful boy, always stayed at home, and knew his testimony was of vital concern to appellant in the trial of this case, and yet he leaves the country, and if the testimony of appellant be true, never communicated with him at any time or let him know where his whereabouts was, and yet the court was asked under such a statement to indefinitely continue this case in order that he might find the witness. After a review of this record we are now more than ever convinced that the application for continuance was without merit.

The fifth ground of the motion complains that the court erred in upholding the charge of the trial court wherein the trial court charged the jury that it could find appellant guilty of manslaughter, only in the event that the killing was done in a sudden transport of passion. That the charge imposed too great a burden on appellant. We apprehend that this contention is predicated upon the decision of this court in the case of Kannmacher v. State, 51 Tex.Crim. Rep., 101 S.W. Rep., 238. This decision on this point has been expressly overruled in the case of Waters v. State, 54 Tex.Crim. Rep., 114 S.W. Rep., 628.

We have anew carefully reviewed all of appellant's contentions in this case and must say that the original opinion is correct, and the motion for rehearing therefore is in all things overruled.

Overruled.