Alsup v. State , 85 Tex. Crim. 36 ( 1919 )

Appellant was convicted of murder and his punishment fixed at seven years confinement in the penitentiary.

On this appeal his most serious complaint is that he was deprived of the testimony of his witness Allison, by reason of the fact that while the jury were being selected in his case, and after the witness had been sworn and put under the rule, said witness Allison was indicted for the same offense as that charged against appellant, and he was thereby unable to have the benefit of Allison's testimony; which facts, and the testimony he expected to obtain from said witness, were set out at length in appellant's motion for new trial. It also appears that appellant did not know of such indictment or the arrest of said witness thereunder, until after the completion of the jury and the arraignment and plea of not guilty of the appellant, but that he did know of same before any testimony was introduced.

There is no claim or allegation on the part of appellant, in his motion for new trial, that the indictment of Allison was fraudulently or purposely done without just ground and to deprive appellant of his testimony, nor is such proposition suggested or sustained by any evidence introduced in support of said motion for new trial. From the record it seems that the indictment against Allison for complicity in the same offense charged against appellant, was rather expected by the parties. The grand jury met on the first Monday in January, 1918 and recessed on the 11th, after returning an indictment against appellant, said recess being taken until the 28th of said month. On the 14th the trial court set the case of appellant down for January 29th. The grand jury reconvened on the 28th and on the 29th returned into court the indictment complained of by appellant here. The district attorney states, without controversy, that he was not with the grand jury on the day the indictment against Allison was returned, and also says that when the grand jury took its recess, as mentioned, that he was surprised that an indictment had not been returned against Allison.

Our statute, Article 616, C.C.P., plainly provides for a continuance or postponement of a case upon application of either party, when by some unexpected occurrence, after the trial has begun, the applicant is so taken by surprise as that a fair trial cannot be had. If appellant really desired the testimony of Allison he should have availed himself of his right under this statute and should have made such motion. While same is addressed to the sound discretion of the trial court, its apparent abuse has always been revised by this court, and if an accused failed to avail himself of this plain remedy, he cannot for the first time set up the matters which constitute the unforseen occurrence in his motion for new trial.

As said by this court in Childs v. State, 10 Texas Crim. App., 183, speaking of a case where the appellant claimed surprise during the trial: "It then became the duty of the defendant to apply to the court for either a continuance or a postponement, and not to pass it by and depend upon a new trial to enable him to counteract the effect of the surprise. He should have acted at the time and in the manner prescribed by law, and not having done so, he cannot now be heard to complain." See Higginbotham v. State, 3 Texas Crim. App., 447; Walker v. State, 7 Texas Crim. App., 245; Roach v. State, 21 Texas Crim. App., 249; Eldridge v. State, 12 Texas Crim. App., 208.

That such matter is not available when set up for the first time on motion for new trial is well settled. Raleigh v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 1050; Graves v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 961; Bryant v. State,35 Tex. Crim. 394.

Other witnesses testified substantially as appellant claimed Allison would have done, and one accused, on the trial, or at any other stage in his case, may not neglect his plain statutory remedies and take chances on the result, and on motion for new trial make his first complaint because the result was unfavorable to him. Appellant should have made a motion for a postponement setting up the facts and if same had been granted he could then have demanded the trial first of Allison in due statutory form.

The other matters set up by appellant we do not think constitute any reversible error.

The judgment is affirmed.

Affirmed.

ON REHEARING. March 12, 1919.