Renfroe v. State , 145 Tex. Crim. 363 ( 1942 )

BEAUCHAMP, Judge.

Appellant was convicted on a charge of assault to murder and sentenced to two years in the penitentiary.

The record is before us with only one bill of exception. This complains of the action of the court in refusing to grant a second motion for continuance. The application was made because of the absence of three witnesses. One of these witnesses was called to testify in the case but his evidence is not of material assistance to the defense. The evidence of Kiser could be nothing more than prejudicial to the prosecuting witness. Furthermore, he lived in the county but it is not shown that any effort was made to secure his attendance after he failed to appear at the time the case was called for trial. The contention is made with more insistence that appellant was entitled to have the evidence of the witness Bancroft who had moved to the State of Tennessee. The record reflects that there was a former trial of the case at which Bancroft had testified but it does not appear that the evidence on the former trial as given by him was offered and that the court failed to admit it. No effort had been made to take his deposition. On such statement of facts, we think the court properly overruled the motion for a continuance.

The charge seemed to have been satisfactory to the defense and no exceptions were filed to it. There is no motion for a new trial and we find no other question raised by the record. The evidence is sufficient to sustain the verdict.

The. judgment of the trial court is affirmed.