Gunter v. State , 144 Tex. Crim. 43 ( 1942 )

In his motion for rehearing, appellant insists that we erred in holding that the trial court did not abuse his discretion in refusing to grant a new trial because of the absence of the testimony of the witness J. A. Clarkston, as shown in appellant's second application for a continuance. We have again examined the record and remain of the opinion that the case was correctly disposed of originally. The fact that the witness Clarkston, who was under process, had never appeared in obedience to that process, and that the case had once before been continued on account of his absence, was a sufficient circumstance to authorize the trial court to conclude that the witness would not have testified as alleged, or that, if he had so testified, it likely would not have produced a different result. Escobar v. State, 121 Tex.Crim. R.,51 S.W.2d 346; La Fitte v. State, 122 Tex. Cr. 239, 54 S.W.2d 133.

From what we have said, it follows that appellant's motion for rehearing should be overruled. It is so ordered.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.