Nicholson v. State , 148 Tex. Crim. 37 ( 1944 )

The offense is theft of personal property over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of three years.

The only question presented for review relates to the court's action in overruling appellant's first application for a continuance based on the absence of two witnesses, one of whom resided in the City of Austin and the other, who was the stepfather of appellant, resided in the City of Houston. The State filed a contest based on the ground that no diligence was exercised by appellant to secure the attendance of the witnesses. The evidence adduced by the State on the issue formed shows that the indictment in this case was returned against appellant on the 21st day of May, 1943; that this case and another one then pending against him were set for trial on the 25th day of October, 1943; that the other case was tried and the present case was passed; that on the 15th day of April, 1944, the court set this case for trial on the 24th day of April, at which time it was postponed until the 28th day of said month. Application for process for the absent witnesses was not made until the 19th day of April, 1944, which was approximately eleven months after the indictment had been returned and after he had been tried on some of the other indictments. Under the facts disclosed by the record the trial court was justified in overruling the application on the ground of a want of proper diligence. See May v. State, 129 Tex. Crim. 2; Shepherd v. State, 10 S.W.2d 730, (on rehearing); Bentley v. State, 178 S.W.2d 521; Holmes v. State,136 Tex. Crim. 26; Kelly v. State, 17 S.W.2d 460; Fullbright v. State, 101 S.W.2d 571.

The judgment of the trial court is affirmed.

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.

ON APPELLANT'S MOTION FOR REHEARING.