
    PLUMLEE v. STATE.
    (No. 10280.)
    
    (Court of Criminal Appeals of Texas.
    Oct. 6, 1926.
    Rehearing Denied March 16, 1927.)
    1. Criminal law <&wkey;598(6) — Continuance for witness properly denied, where process not asked until day of trial.
    Continuance to secure attendance of witness held properly denied, where trial was had nearly two months after defendant was indicted, and-he made no application for issuance of process for witness until the day of the trial.
    2. Criminal law <&wkey;>608 — Burden is upon defendant to show exercise of diligence when applying for continuance to secure attendance of witness.
    Burden is upon defendant in criminal action to show exercise of diligence before continuance will be granted to secure attendance of witness.
    On Motion for Rehearing.
    3. Criminal law <@=3595(10) — Continuance for witness, convicted of same offense charged against defendant, and given suspended sentence, held properly denied (Code Cr. ,Proc. 1925, art. 71 I; Acts 39th Leg. [1925] c. 27).
    Person convicted of same offense and transaction charged against defendant, and given suspended sentence, held, incompetent, under Code Cr. Proc. 1925, art. 711, to testify on defendant’s behalf, notwithstanding Acts 39th Leg. (1925) c. 27, and continuance to secure his attendance at defendant’s trial was properly denied.
    Commissioners’ Decision.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    E. C. Plumlee was convicted for the theft of property of value of over -$50, and he appeals.
    Affirmed.
    Robert E. Bowers and Floyd Jones, both of Breckenridge, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., or Groesbeck, for the State.
    
      
      Second rehearing denied 292 S. W. —.
    
   BERRY, J.

The offense is theft of property of the value of over $50, and the punishment is two years in the penitentiary.

The appellant was convicted upon his plea of guilty to the charge. There are but three bills of exceptions contained in the record; the first of these bills complain at the court’s action in refusing to postpone the case until the witness Clyde Feely could be located and his attendance secured. The court certifies, in explanation of this bill, that no application for the issuance of any process was ever made for said witness until the 13th of November, 1925, the record disclosing that the ease was tried on this day. The record further shows that the appellant was indicted on the 17th day of September, 1925, nearly two full months prior to the date of the trial. With the record in this condition, the showing of diligence is utterly insufficient. There is nothing in this record that would tend to excuse or justify the appellant ip waiting until the day of the trial to issue a subpoena for the absent witness, and there is no showing made that the subpoena was ever served, and no reason given as to why this was not done. The rule is well settled in this state that the burden is upon the defendant to establish the exercise of diligence in support of an application for a continuance. Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note; Grimes v. State, 77 Tex. Cr. R. 319, 178 S. W. 523.

Complaint is also made at the court’s action in refusing a new trial on the ground of alleged misconduct of the jury. The' evidence as to what took place in the jury room is more or less conflicting, and we are disposed to hold that no abuse of the court’s discretion is shown in regard to this matter. We are confirmed in this view of the case because of the fact that the appellant pleaded guilty and was given the lowest penalty prescribed by law for the offense with which he was charged. It is true that he asked for a suspended sentence, and this was denied him by a verdict of the jury, but we will not hold under the facts contained in the record that this denial was probably due to any misconduct of the jury trying the case.

By another bill complaint is made at the court’s action in making a statement on the hearing on the motion for a new trial as to what took place at the time the jury was discharged. This matter was being heard by the court after the jury had been discharged, and we think no error is shown by the bill.

Finding no error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the 'Commission of Appeals has been examined by the judges of the Court of Gtiminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant seriously questions the correctness of our upholding the refusal of his request for a postponement when this case was called for trial. The correct solution of this matter rests upon a ground not discussed in our original opinion, as wrnll as what we there -said. Postponement was sought to get the testimony of one’ Feely. His affidavit is attached to the motion for new trial, and shows that he bad been indicted for the same offense and transaction charged against this appellant, convicted and.given a five-year suspended sentence, which had not been set aside or dismissed at the time of this trial. In Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202, Sunday v. State, 77 Tex. Cr. R. 26, 177 S. W. 97, and Majors v. State, 100 Tex. Cr. R. 304, 273 S. W. 268, we upheld the proposition that one in such case would not be usable as-a witness on behalf of his codefendant. The statute so stating is article 711, 1925 O. C. P-We do not think the provisions of chapter 27, Acts Regular Session Thirty-Ninth Legislature, make any change in the law as same appears in said article 711, supra. GenelaJ competence to testify on the part of persons convicted of crime, who are not confined in the penitentiary, is announced by this recent statute, but no reference to or change in article 711 appears. There was no error in refusing the postponement for this additional reason to that stated in our original opinion, that Feely could not have testified for appellant if the postponement had been granted.

On the question of misconduct of the jury, we observe that appellant pleaded guilty and was given the lowest penalty. We necessarily conclude that what may have been said in the jury room must have been something reasonably calculated to influence the jury against giving appellant a suspended sentence, in order for us to hold such statements injurious. We have again carefully examined and analyzed all that appears in bill of exceptions No. 3, wherein is set out all the testimony beard in support of the motion for new trial. Appellant introduced one juror, and the state produced four. We think the learned trial judge entirely' justified in settling the apparent conflicts in the testimony of these gentlemen favorably to the state.

We perceive no possible injury to appellant from what was said by the judge to the jury after they had brought in their verdict nor in the incorporation of a statement made by the judge in the transcript of the testimony adduced upon the motion for new trial.

The motion for rehearing will be overruled. 
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