Winfrey v. State , 122 Tex. Crim. 480 ( 1932 )

Appellant calls attention to a statement in our original opinion to the effect that his second application for continuance names only the witness Richardson. The application is rather unusual in form. In the first paragraph Richardson only is named, but we find from the third paragraph that the application was also predicated on the absence of the witness Thompson, which we overlooked in disposing of the case originally. At a former day of the term the case had been postponed at appellant's request. Therefore, the application we are dealing with was a second application. Tinker v. State,99 Tex. Crim. 369, 269 S.W. 778; Brannan v. State,108 Tex. Crim. 418, 1 S.W.2d 279. One requisite of such an application is an averment that the absent testimony "cannot be procured from any other source known to defendant." Article 544, C. C. P. There is an entire absence of any such statement in the application before us. This is fatal. Tinker (supra); Brannan (supra); Bascom v. State, 114 Tex.Crim. Rep.,24 S.W.2d 437; Davis v. State, 110 Tex. Crim. 605, 10 S.W.2d 116. The application contained an averment that issuance of process for Richardson and Thompson had been requested, but it failed to show that process was issued, or what became of it. This showing was necessary. Buie v. State, 1 Texas App., 455; Branch's Ann. Tex. P. C., sec. 315; Collins v. State, 114 Tex.Crim. Rep.,26 S.W.2d 1074; Best v. State (Texas Crim. App.), 28 S.W.2d 803; Holder v. State, 116 Tex.Crim. Rep., 31 S.W.2d 637. By reason of the defects in the application the court would have been warranted in denying the continuance upon the face of the application itself, for it really furnished no proper basis for the investigation which the court made after the state filed a controversy. From the evidence heard and brought forward in the bill, we think the court would have been justified in reaching the conclusion that Richardson was a fugitive from justice and that Thompson resided in another state.

We have again examined the other questions adverted to in appellant's motion. We think they were properly disposed of originally.

The motion for rehearing is overruled.

Overruled.