Halbert v. State , 121 Tex. Crim. 355 ( 1932 )

Appellant predicates his motion for rehearing on the proposition that we were wrong in the conclusion reached regarding his second application for continuance.

The showing of diligence as to the absent witness Smith appears in the application as follows: "On the first day of the March Term 1931 of this Court, to-wit: On March 2d 1931, defendant by his counsel made application for the issuance of a subpoena for said witness to compel his attendance as a witness for defendant in this cause, giving the place of residence, the exact location and vocation of said witness; that on the 3rd day of March, A.D. 1931, the clerk of this court issued a subpoena for said witness and sent the same by mail to Bee County, Texas, for service on said witness; and that said process has not yet been returned to this court; that on the first day of this term of this court defendant, by his counsel, asked the court for an order for an attachment to be issued to Bee County, Texas, for said witness to compel his attendance as a witness in behalf of this defendant at this term of this court; that thereupon the clerk of this court issued an attachment for said witness addressed to the sheriff of Bee County, Texas, which defendant is informed and believes is the present residence of said witness. That said process has not been returned to this court."

The term of court at which the case was tried began August 24, 1931. The process for Smith which was issued the first of March had not been returned. Practically six months had elapsed before the second process for this witness was requested. If any effort had been made to make sure of the location of the witness or to take steps towards securing his attendance at the August term of court until this second process was applied for, the application for continuance fails to show it. It appears only that appellant "is informed and believes" that Bee county was the then residence of the witness. The process in March went to Bee county and met with no respense; yet the court was not informed in the application for continuance of any fact or information leading appellant to believe the witness was still in that county. Under the circumstances we are bound to hold that a lack of diligence to secure the presence of this witness appears upon the face of the application itself.

As to the absent witness Alford, it is shown that he was served with process at the preceding March term, 1931, and attended court at that time as a witness. In the second application for continuance it is averred that appellant was informed and believed that said Alford was temporarily in the state of Delaware. In our original opinion we stated that the application for continuance to have been sufficient as to Alford, should have shown "when he left Texas, when appellant became aware of this, and facts should be averred showing that proper diligence could not have secured the deposition of such witness in time for this trial."

In his motion for rehearing appellant calls attention to the provisions of article 749, of the C. C. P., which requires that, before depositions taken in a criminal case may be read in evidence, oath must be made that the witness whose deposition is offered resides out of the state. Appellant's position is that under the facts alleged in the application for continuance he could not make this affidavit because he had no information that the witness "resided" out of the state, but that he was only away temporarily, and that if, under these circumstances, the depositions of Alford had been taken they could not have been properly admitted in evidence. In support of his contention appellant cites Evans v. State, 12 Texas App., 370; Sullivan v. State, 6 Texas App., 319, 32 Am. Rep., 580; Cooper v. State, 7 Texas App., 194; Freeman v. State,115 Tex. Crim. 66, 30 S.W.2d 330; Serna v. State,110 Tex. Crim. 220, 7 S.W.2d 543. It may be the statement in our original opinion was too broad. We do not discuss the matter further than to say there is some question in the mind of the court as to whether it would be necessary for an application for continuance for a witness who was temporarily out of the state to go as far as was indicated originally. The matter of Alford's absence may be disposed of, we think, upon an entirely different ground.

It is stated in the application that the evidence expected from Alford was that he was "an eye witness to the transaction alleged in the indictment herein and that the deceased, Roy Russell, at the time of the occurrence alleged in the indictment, and before defendant made an assault upon deceased, was making an assault upon this defendant."

One of the grounds urged by the state against the sufficiency of the application for continuance was not discussed in our original opinion. It was based upon the proposition that an application for continuance must set out the facts which are expected to be proven by an absent witness, and it must appear to the court that they were material; that such application was defective if it failed to specifically set out the facts which said absent witness would testify to, but merely stated conclusions, and that general averments were not sufficient. It is unquestionably true that the averment as to what appellant expected from the witness Alford is of a most general nature. If the witness had been present and had attempted to testify that the deceased had made an assault upon appellant before appellant assaulted deceased, such proposed evidence doubtless would have been met by an objection and a request that the witness be required to state what the respective parties did in order that the jury might appraise the value of his testimony. The trial court and this court are left in the dark from the application as to what particular act deceased did which the absent witness might have characterized as as assault. We find from the statement of facts that one Calvin Davidson testified that he saw deceased kick at appellant and that he appeared to be angry at the time, and that he (witness) took his eyes off them for just a second, and when he looked again deceased was lying on the sidewalk. Whether the act of kicking by deceased (if it occurred) would have been regarded by the absent witness Alford as an assault we are in no wise able to say. If such act was intended to be covered by the averment in the application for continuance, then the testimony of the absent witness would be cumulative. We call attention to these matters because the record fails to show the sufficiency of the application for a continuance for the reason that it does nothing more than state a conclusion of the absent witness. It must furthermore be borne in mind that it is not in every case, even where the absent witness's testimony is material, that the appellate court will reverse because of the denial of a continuance. It is only where from the evidence adduced on the trial the appellate court is impressed with the conviction that it is reasonably probable if the absent testimony had been before the jury a verdict more favorable to appellant would have resulted. Branch's Ann. Tex. P. C., sec. 319, and authorities cited thereunder. In passing upon the motion for new trial predicated upon the refusal of continuance the trial court necessarily had before him all of the evidence found in the record before this court, and under the rule last stated we can not reach the conclusion that the trial court erred in overruling the motion for new trial.

In his motion for rehearing appellant calls attention to the judgment of conviction which directs that appellant should be punished by confinement in the state penitentiary for a term of twenty years, it evidently being appellant's idea that the judgment should have been for not less than two nor more than twenty years, under the indeterminate sentence law. The judgment was properly entered following the verdict of the jury. Article 775, C. C. P., provides that in passing sentence the trial judge "instead of pronouncing a definite time of imprisonment in the penitentiary * * * shall pronounce * * * an indeterminate sentence of imprisonment in the penitentiary, fixing in such sentence the minimum and maximum terms thereof, fixing in such sentence as the minimum time of imprisonment * * * the time * * * prescribed by law as the minimum * * * and as the maximum time of such imprisonment the term fixed by the jury in their verdict." We observe that in passing sentence upon appellant the court properly complied with the provisions of article 775 (supra).

The motion for rehearing is overruled.

Overruled.