Thomas v. State

We said in our original opinion that appellant's second application for a continuance was defective in failing to aver that the same testimony expected from the absent witnesses could not be procured from any other source. We were mistaken as to this in so far as the application was based on the absence of Mrs. Burrell Thomas. It did state that her evidence in certain respects could not be procured from any other source. There can be no doubt that her evidence was material and we think that the court committed error in not granting the continuance. The denial of the continuance was made one ground of appellant's motion for new trial. It appears from the court's qualification to the bill which complained of the denial of the continuance that Mrs. Thomas had died between the date of the trial and the time the motion for new trial was presented. Upon hearing of the motion for new trial, even had the trial court concluded that he had been in error in refusing the continuance, he was confronted with the proposition that to have granted the new trial would have availed appellant nothing because he had been deprived of the witness' evidence on another trial because of her death. To now reverse the judgment because of an error in refusing the continuance would be a useless thing. Similar questions in principle will be found discussed in Tapley v. State, 25 S.W.2d 869; Medlin v. State, 29 S.W.2d 752; McLaren v. State, 85 Tex. Crim. 31,209 S.W. 669; Watson v. State, 90 Tex. Crim. 576,237 S.W. 298; Smith v. State, 98 Tex.Crim. Rep.,266 S.W. 153.

It is not necessary to consider the other witness for whom the continuance was sought as the court certifies that this witness appeared at the trial, was tendered to appellant, but was not used as a witness.

Written exception was taken to the court's charge for its failure to submit any instruction on the law of circumstantial evidence. Such omission is again urged as error in the motion for rehearing. Two deputy sheriffs and the sheriff testified that they found appellant and two other parties at a still which was in operation. The officers agreed that when they got to within thirty or forty yards of the still the parties discovered them and all of them fled. They escaped for the time being but were later arrested. One of the deputies testified "they were working around the still when I first saw them, I don't know now just what they were doing. I don't remember." The other deputy testified "they were doing something; I don't remember what they were doing, all three of them were just right up around the still." The sheriff testified in substance that appellant was one of the parties but he could not tell what they were doing around the still; that the officers were slipping up on them and watching them. He said he could not be positive that he saw appellant doing any work at the still.

It was not appellant's defense that he was present at the still as an innocent bystander, but he defended on the ground that he was not there at all, insisting that the officers were mistaken in their testimony identifying him as one of the parties. Appellant insists that the state's case is one depending upon circumstantial evidence and relies on the cases of Berry v. State, 104 Tex.Crim. Rep., 282 S.W. 594, and Ellsworth v. State, 92 Tex.Crim. Rep.,244 S.W. 147, to support his proposition. It will be found in each of the cases mentioned that accused admitted his presence at the time and place of the commission of the offense but denied guilty participation therein. From the facts it appeared that the State was relying upon circumstances only to connect the accused with the commission of the offense and therefore the cases were reversed for a failure to charge upon circumstantial evidence. It does not occur to us that the facts of the present case bring it within the rule announced in those just mentioned. Helton v. State, 94 Tex.Crim. Rep.,250 S.W. 1030; Arzate v. State, 99 Tex.Crim. Rep.,270 S.W. 1017, appear to be more nearly in point and are against appellant's contention.

Believing the case was properly disposed of in our original opinion, the motion for rehearing is overruled.

Overruled.