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McDuff v. State , 90 Tex. Crim. 557 ( 1921 )


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  • MORROW, Presiding Judge.

    Conviction is for robbery; punishment fixed at confinement in the penitentiary for a period of twenty-five years.

    The indictment makes no reference to the use of fire-arms; and the case was not submitted to the jury as a capital offense. There was no error in refusing a special venire. Gonzales v. State, 88 Texas Crim. Rep., 250.

    The robbery was committed at night-time, and the appellant was definitely identified by the injured party as the- perpetrator of the offense. He lived nearby and was well-known to the witness.

    Appellant testified to the defense of alibi. His testimony on the subject was indefinite as to the time of the day, but in it he said that he went to the house of his sister-in-law, Mattie Parton, and made some coffee. He presented an application for a continuance on account of the absence of Mattie Parton, who, at the time of the trial, was alleged to have been sick. A subpoena was issued and served upon her upon the day of the trial. The application was indefinite and alleged in general terms that at the time of the offense, appellant was at the home of Mattie Parton. It appears from the facts developed *559 that the appellant, the injured party and Mattie Parton were all residents of the same locality. The affidavit of the witness to the effect that she would not give the testimony was used on the motion for new trial. We are unable to conclude that in overruling the motion to con-time or the motion for a new trial the court abused the discretion which is vested in it by law.

    No error appearing, the judgment is affirmed.

    Affirmed.

Document Info

Docket Number: No. 6467.

Citation Numbers: 236 S.W. 99, 90 Tex. Crim. 557, 1921 Tex. Crim. App. LEXIS 204

Judges: Morrow

Filed Date: 11/16/1921

Precedential Status: Precedential

Modified Date: 11/15/2024