DocketNumber: No. 21001
Citation Numbers: 139 Tex. Crim. 647, 141 S.W.2d 611
Judges: Krueger
Filed Date: 4/24/1940
Status: Precedential
Modified Date: 1/13/2023
The offense is bigamy. The punishment assessed is confinement in the State penitentiary for a term of two years.
It was charged in the indictment that on or about the 24th day of June, A. D., 1939, in the County of Somervell and State of Texas, John L. Edwards, Jr., alias John L. Evans, did unlawfully marry Vada Rogers he, the said John L. Edwards, Jr., alias John L. Evans, then and there having a former wife, to-wit: Drucilla Lee Edwards, then living.
Upon the trial is was conclusively shown by the State’s testimony that on the 24th day of December, 1929, the appellant obtained a marriage license from the .County Clerk of Mills County to marry Drucilla Lee. That on. said day, by virtue of said license, S. F. Roberts, a Minister .of the. Gospel, united in marriage the said John L. Edwards, Jr., and... Drucilla Lee. After their marriage they lived on a farm between Stephenville and Dublin for about, two years: That later, he purchased a small tract of land from L. L. Hancock, to which
Appellant did not testify. His defense was alibi and mistaken identity, and in support of the same he offered three witnesses who testified that on the 24th day of June, 1939, appellant was employed by the Texas Sash & Door Company, located in the City of Fort Worth. That on said date he worked until 3:00 p. m. He also proved by several witnesses that on the morning of August 17th, he was in Stephenville, Texas.
When the case was called for trial appellant made an application for a continuance based on the absence of his mother, who was ill and by whom he expected to prove, and would have proved, that on the morning of August 17, 1939, he was at her home. To this application he attached a certificate of a physician who certified that Mrs. Edwards, appellant’s mother, was too ill to attend the trial. The court overruled the motion to which appellant. excepted. After his conviction he filed a motion for a new trial based on the court’s action in overruling his application for a continuance. To this motion he attached an affidavit of his mother from which it appears that she would testify to the facts stated in the application for a continuance. The court overruled his. motion for a new trial, to which he excepted, and by a bill of exception brings the mat
In the case of Escobar v. State, 51 S. W. (2d) 346, this court said: “[If it be conceded] that the trial court had no discretion to determine the probable truth of the testimony of the absent witness, this did not necessitate a new trial unless the materiality of the absent testimony was such that, if true, it would likely produce a different result upon another trial.”
The court in that case further said: “Conceding the truth of the absent testimony, the question is whether, viewed in the light of the facts adduced upon the trial, it is of such materiality as that it would likely produce a different result'upon another trial.”
Having reached the conclusion that no reversible error is reflected by the record, the judgment of the trial court is affirmed.
The foregoing opinion -of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.