Hart v. State

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

While the appellant might not have been expected to follow the procedure suggested in our original opinion and to have had a subpoena issued for the witness Paul Horn at the time of his (appellant’s) release from jail, we do not think that appellant did all he could have done toward exercising necessary diligence in securing the attendance of the witness Horn. Appellant apparently failed to impress upon this witness the urgency and need for his testimony, since the witness forgot to appear.

In reviewing the record before us, we ob-sérve that the affidavit of the absent witness, Paul Horn, attached to appellant’s amended motion for new trial, states:

“On the 17th day of December, 1961, I was with Clifford A. Hart when he was arrested * * * near Sierra Blanca, Texas and charged with driving while intoxicated.

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“I worked until noon on the 17th of December, 1961, and when I got off ■Clifford Hart was waiting for me

The information, filed on December 13, 1961, charged and the evidence reflects that the offense was committed on December 9, 1961.

The discrepancy in the dates shown is perhaps an honest mistake of fact, or a clerical error, but yet it tends to create doubt and to further exemplify the forgetful nature of the witness Horn and, in our judgment, does bolster the conclusion of the trial judge in reaching the decision he did.

Remaining convinced that this cause was correctly disposed of upon original submission, the motion for rehearing is overruled.