Bonner v. State

Appellant insists that we were in error in holding that his first application for a continuance was properly overruled. It is observed that the indictment was returned on the 28th of February, 1935, and that the trial was had on the 15th of April of the same year. Appellant waited until two days before the trial to make application for process for the absent witnesses. He offered no valid excuse for the delay. Under the circumstances, we think it is manifest that the diligence was insufficient. It is well settled that the burden rests upon the accused to establish the exercise of diligence in support of an application for continuance. Branch's Annotated Penal Code, sec. 314; Walker v. State, 13 Texas App., 618; Long v. State, 17 Texas App., 129; Boyd v. State, 57 Tex.Crim. Rep., 124 S.W. 651; Walker v. State, 60 S.W.2d 455. It might be added that appellant failed to attach the affidavits of the absent witnesses to his motion for new trial. Hence the trial judge had the discretion of determining that the absent testimony was probably not true. In view of the evidence adduced upon the trial, such discretion, in our opinion, was not abused.

The next contention appellant makes is that bill of exception No. 8 discloses that the district attorney, in argument, referred to appellant's failure to testify. In the original opinion attention was called to the fact that it was necessary to appraise the bill without reference to the qualification appended thereto by the judge, as same was over appellant's exception. See Taylor v. State, 79 S.W.2d 1104; Stokes v. State, 119 Tex.Crim. Rep., 46 S.W.2d 976. Nowhere in the bill of exception is it shown that appellant did not in fact testify. We quote from 4 Texas Jur., p. 396, as follows: "A bill complaining that an argument or remark of the attorney for the State was a reference to the failure of the defendant to testify must show that the defendant did not in fact testify. A mere statement as a ground of objection that he did not testify is not sufficient; nor does asking a charge directing the jury to disregard the argument amount to a certificate of the judge that in fact the defendant did not testify."

In support of the text numerous authorities are cited, among them being Cuellar v. State, 110 Tex.Crim. Rep., 7 S.W.2d 565; Hughes v. State, 100 Tex.Crim. Rep.,271 S.W. 620; Deal v. State, 99 Tex.Crim. Rep., 268 S.W. 746.

After a reexamination of the evidence, we remain of the opinion that the proof was sufficient to warrant the conclusion that appellant was guilty of theft of more than fifty dollars in money.

The motion for rehearing is overruled.

Overruled.