McCrimmon v. State

ON REHEARING.

January 22, 1908.

DAVIDSON, Presiding Judge.

At the Tyler term the judgment in this case was affirmed. Motion for rehearing had been filed and a reconsideration of the case requested. It seems that the errors claimed to have been made by the court in affirming the case largely grew out of the fact that the application for continuance was treated as a second and not a first application, and contention is made that the opinion is incorrect in so treating the case, and that as a fact it was a first application. We have reviewed that question and are still of the opinion that it is a second application as is made to appear by the transcript, bills of exception and qualifications of the judge. It is true appellant states in his application that it is a first application for a continuance. Finishing the application as to the substantial matters, it is thus closed before being sworn to by appellant: “The premises considered, this defendant prays the court and now moves the court to grant this, his first application for continuance, which application he makes with all the requirements which are embraced in a second application, and which he asks the court to consider as a second application should it hold that he is chargeable with any continuance heretofore, and the defendant prays and moves the court to continue this cause to the next term of this honorable court.” This is an excerpt from the closing part of defendant’s application. The court signing this qualifies it as follows: “This was the second application for continuance of this case by the defendant, and the court not being a party to any contract, understanding or agreement, defendant’s counsel may have had with the county attorney outside of court or elsewhere. This case was set for trial on October 14th for October 28th, on said last date same was set over to afternoon of the 29th, and at this date case was reset for the 30th. Witnesses Gregory and Crews and negro girl, Clemie Muse, were neither present in court on Monday, 28th, nor on the 29th, although defendant’s counsel and defendant both knew of said witnesses’ absence, asked for no process to compel their attendance and made no effort to get them or either of them. Witnesses resided, Clemmie Muse, within six or seven miles of courthouse; and Gregory and Crews about thirteen or fourteen miles of same. Ho application was made for attachment for these witnesses at any time. Testimony of witness McGee shows that he was near defendant, and had better opportunity to see defendant at the time he is charged with having the pistol than either of the witnesses Gregory or Crews; their testimony would be simply cumulative and circumstantial.” (Signed by the county judge.)

The witness, Muse, was not present at the time and place where the pistol should have been exhibited, and her testimony was expected to show that appellant’s pistol was at home where he and she resided at the time appellant should have had the pistol at the point designated by the State’s testimony. In the absence of the statement or qualification of the trial judge, it is somewhat doubtful as to whether this would have been a first or second application; but the judge qualifies it, making it a second application. The qualification of a judge to a bill of exceptions will control in the absence of a contest by appellant in the form of a bill by bystanders. Whenever a bill of exceptions is accepted by the party taking it, as qualified by the judge, the qualifications will be considered as controlling the statement in the main portion of the bill. We, therefore, are still of the opinion as this record presents this matter, the application was a second and not the first application. The second application is governed by entirely different rules from that with reference to the first. Viewing this in the light of the record, we are still of the opinion that the testimony is cumulative, and as stated heretofore, rather circumstantial.

The motion for rehearing is overruled.

Overruled.