Stolleis v. State , 117 Tex. Crim. 26 ( 1930 )

By a supplemental transcript now on file with the clerk of this court appellant shows that the three bills of exceptions in this record were filed in the trial court on May 16, 1930, and were therefore entitled to be considered on this appeal. The clerk of the trial court had failed to put into the transcript the date of the filing of said bills. It seems useless for this court to comment on the delay and expense incident to such failures of the officers of the trial courts.

Bill of exception No. 1 was taken to the refusal of a subsequent application for continuance by appellant. As we understand said bill, this application was originally presented on February 13, 1930, and was based on the absence of a number of witnesses. The case was then postponed to February 20, 1930, at which time the application then presented rested solely on the absence of Dr. Phillips. A somewhat serious question of diligence arises in view of the fact that the indictment herein was returned in 1928, and the only subpoena appearing in the record for this witness was issued in February, 1930. There is a controverting affidavit of the district attorney in which he states that this witness was served with a subpoena herein on February 12, 1928, but that he has never, within affiant's knowledge, appeared at court, and that no attachment had ever been asked or issued for him. Article 548, C. C. P., provides that in case such denial of diligence under oath be filed, the issue of diligence shall be tried by the judge, who shall hear testimony by affidavits, and grant or refuse the application as the facts and law demand. No affidavits are in this record as having been filed by either side after the state made its controverting affidavit to appellant's diligence. We would hesitate to hold the action of the trial court in overruling the application an abuse of his discretion. However, it appears that three other doctors used as witnesses for the defense on this trial, testified that appellant was insane, also a number of non-expert witnesses who knew appellant, gave testimony to the same effect. No affidavit of Dr. Phillips was attached to appellant's motion for new trial. We observe that in the application it is set out that Dr. Phillips would swear that "Subsequent to the date of the commission of the alleged offense this defendant was under the care, treatment and observation of said Dr. Phillips, and that if present he would testify that defendant's condition was such as that at the time of the commission of the offense he was insane, and unable to distinguish between right and wrong." We note that on the question of insanity the State introduced some ten witnesses, one a doctor of experience, all of whom testified to their own association and acquaintance with appellant, their observation of him and their belief in his sanity at the time this offense was committed. The State also introduced a lengthy written confession of appellant describing in detail his movements at the time of, prior to and subsequent to the commission of the crime charged. In passing on a motion for new trial asked on the ground of refusal of a continuance, trial courts in a case like this have to pass on the truth and materiality of the absent testimony as well as the further question, viz.: whether if the absent testimony had been present a different result would likely have been obtained. The overruling of the motion evidences the fact that the trial judge did not think there would likely have been any different result. We do not believe there was an abuse of or an arbitrary exercise of such discretion. Hunter v. State, 59 Tex. Crim. 439,129 S.W. 125; Lane v. State, 59 Tex. Crim. 595,129 S.W. 353; Johnson v. State, 61 Tex.Crim. Rep.,134 S.W. 225; Furnace v. State, 79 Tex.Crim. Rep.,182 S.W. 454; Keel v. State, 84 Tex.Crim. Rep.,204 S.W. 863; Morse v. State, 85 Tex.Crim. Rep., 210 S.W. 965; Brown v. State, 85 Tex.Crim. Rep., 215 S.W. 97; Russell v. State, 88 Tex.Crim. Rep.; 228 S.W. 948; Hughes v. State, 95 Tex.Crim. Rep., 252 S.W. 774. In determining whether such discretion has been abused, the testimony before the court, as well as the absent testimony, may be looked to. Bookout v. State, 95 Tex. Crim. 562,255 S.W. 441.

When appellant's confession was offered in evidence by the State it was objected to. Same contained the statutory warning, but upon objection being made, evidence was heard, which is set out in a bill of exception. The confession appears to be admissible, but in view of the testimony the trial court correctly submitted the issue to the jury in the charge. We see no reason for believing the procedure erroneous.

There is nothing in the remaining bill of exception. As a result of the making of a statement to the sheriff by appellant, the saw used by him to effect an entrance into the building on the night of the alleged burning, was found. This made admissible appellant's statement, even though he may have been under arrest and unwarned at the time he made it. Hughes v. State, 86 Tex.Crim. Rep., 218 S.W. 1048; Hilliard v. State, 87 Tex.Crim. Rep., 222 S.W. 553.

We are of opinion the motion for rehearing should be overruled, and it is accordingly so ordered.

Overruled.

ON REQUEST TO FILE SECOND MOTION FOR REHEARING.