Knox v. State , 116 Tex. Crim. 578 ( 1930 )

Appellant again insist upon error in the refusal of his application for a continuance because of the absence of Mrs. Turner. The facts in this case show that the bank at Tehaucana in Limestone county, was robbed at about 3 o'clock P. M. on November 3, 1927. Appellant was identified as one of the robbers. In his application for continuance he set up that he could prove by Mrs. Turner that she saw him in Terrell, Kaufman county, at 3 o'clock P. M. on November 3, 1927. This application was controverted by the State, and the affidavit of Mrs. Turner was attached to the State's answer to the motion. In the affidavit Mrs. Turner said that she saw appellant in Terrell some time in the latter part of October or early part of November 1927, but she could not say what day of the week or what month, and that she positively would not testify that he was in Terrell on the 3rd day of November of said year. Appellant contends that the trial court had no right to consider said affidavit or use same as a basis for overruling the application for continuance. This court held otherwise in the cases of Wilkins v. State, 35 Tex.Crim. Rep.; Jordan v. State, 78 Tex.Crim. Rep., and Washington v. State,106 Tex. Crim. 149. The matter is so plainly settled against appellant in the discussion of the cases referred to that we do not deem it necessary to further analyze the proposition. The other contentions of appellant are not deemed of sufficient materiality to call for discussion.

The motion for rehearing will be overruled.

Overruled.

HAWKINS, J., absent.