Murrell v. State

On Motion for Rehearing.

The only question discussed in the application for a rehearing is the one relating to the motion for a continuance. One of counsel for appellant in his argument states:

“We cannot agree with the court that there was any duty of diligence incumbent on the defendant until after indictment.”

If there is any expression in the original opinion indicating such holding, it was not intended. His duty as to diligence to get his witnesses began when he was arrested on the indictment. Appellant says there is no question as to diligence up to July 26th. To this we cannot agree. In the application for a continuance appellant states:

“Defendant shows that he has learned that the witness [Sherman Hale] moved from this county to Oklahoma in September, 1914, hut he did not lenow his residence at the time he had a subpoena issued to this county.”

If appellant knew that Hale had left Oor-yell county at the time h'e had the subpoena issued to that county, even if he did not know his exact place of residence in Oklahoma, certainly causing a subpoena to issue would not be diligence, when he knew he had left the county nine months prior to the issuance of the subpoena, and gone to Oklahoma. The case would stand as if he had had no process issued, and no diligence used up to that time. It was his duty, instead of issuing a subpoena, to then make an effort to secure the depositions of the witness. However, the court did grant him a postponement of the ease from July 26th to August 2d. The district attorney that day waived notice and service and copy of the interrogatories, and agreed that commission might issue at once, and commission did issue on that day. It then became the duty of appellant to see that the interrogatories were placed in the hands of an officer authorized to take the depositions.

Appellant insists that we should take judicial notice of the difficulty of securing an officer to take depositions of a witness in a sister state. If we should take such notice, then appellant must also be construed to be in possession of the same information, and yet he made no effort to see that the interrogatories reached the hands of an officer authorized to take depositions. He had seven days. Poteau, Old., is not so distant but that the interrogatories could have been taken and returned in that time by diligence; at least, the duty to endeavor to do so was incumbent on him, and if he failed, after using due diligence, there would be merit in his contention. When this court was first organized it was held in Buie v. State, 1 Tex. App. 455:

“It has been repeatedly decided by this and the Supreme Court that it must be shown what was done with the process obtained for a witness; that it should be made to appear that it was placed in the hands of the proper officer if the witness resided in the county, and if he resided out of the county then that it was forwarded, and how and when, to the proper officer there.”

Appellant states in his application th'at when he had the subpoena issued to Coryell county he knew the witness had moved to Oklahoma. This was July 16th. For 10 days, or until July 26th, when the case was called for trial, he had made no effort to take th'e depositions of the witness. On this day the court granted a postponement until August 2d, that he might take the witness’ depositions. The district attorney waived notice and time, and a commission was issued on that date, and the showing that appellant makes is that he mailed the depositions to the postmaster, with the request that the postmaster turn the depositions over to an officer, sending no money to pay for taking the depositions. The commission never reached the hands of an officer authorized to take the depositions. See Dove v. State, 36 Tex. Cr. R. 105, 35 S. W. 648, and a long list of authorities cited in subdivision 2, § 600, White’s Ann. Code Cr. Proc.

The motion for rehearing is overruled.