
    BYARS v. STATE.
    (No. 3345.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Cbiminal Law (§ 603)— Continuance— Application — Information and Belief.
    An application for continuance for absent witness, based on information and belief, and not stating and verifying the source of information, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dee. Dig. § 603.]
    2. Criminal Law (§ 603) — Continuance-Absent Witness — Diligence.
    A motion for a continuance for absent witness, showing that a subpcena was issued on September 23d, returnable the 28th, which was returned not found, the time of return not being stated, and there being no showing in the return as to diligence, is insufficient to show diligence, though the trial was on the 29th.
    [Ed. Note. — For other cases, see Criminal Law, Cent. ' Dig. §§ 1348-1361; Dec. Dig. § 603.]
    Appeal from District Court, Colorado County ; M. Kennon, Judge.
    Andrew Byars was convicted of assault to murder, and he appeals.
    Affirmed.
    P. P. Putney, of Victoria, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

The court refused appellant’s first application for a continuance, bas.ed on the absence of the witness Ned Morris. The application states that appellant expected to prove by the witness:

“As follows, to wit: That the said witness was an eyewitness to the shooting; that the said witness will testify, so defendant has been informed, that the assaulted party, Ben Ken-non, was the aggressor in the difficulty. That he made threatening remarks to the defendant, and was in a position and making gestures as if he meant to execute said threats, to do the defendant Andrew Byars serious bodily injury, before the defendant, Andrew Byars, shot him. That the said witness will testify further, so the defendant has been informed, that Ben Ken-non was advancing upon and towards the defendant in an angry manner, with his right hand in his pocket, and his left hand raised as if to ward off any blow which might' be given him by the defendant; and will testify further that defendant made no further attempt to shoot after Ben Kennon retreated.”

The bill of exceptions is approved with the statement:

“That the application for continuance does not show due diligence, and, in view of the motion for new trial to be heard, the undisputed evidence shows that the proposed testimony of the absent witness is contradicted by the physical fact of the bullet.”

It will be noticed that the facts expected to be proved are not stated, except upon information. Appellant nowhere in the application, nor attached.to it, shows or attempts to show from whom he received such information. If appellant had been informed that the absent witness would testify as indicated, his source of information should have been stated and verified. As to diligence, the application alleges that the absent witness resided in Colorado county, and that appellant thought his attorney of record appeared before the clerk of the court and made application for subpoena for the said witness Ned Morris, as the law requires to be done, on the 23d day of September, 1914, which application is here referred to and made a part of this application commanding the said witness Ned Morris to appear before the court on the 28th day of September, 1914, at 10 o’clock a. m., to testify in behalf of the defendant; that this subpoena was turned over to the sheriff of Colorado county, and was by him “returned into this court with the following return marked thereon, ‘Cannot be found.’ ” The indictment was returned into court on 19th of the month. Under this allegation the process was issued on 23d of September, returnable on 28th. The ease was tried on 29th of September. At what time the sheriff made the return is not stated; in fact, the above is the showing made on the face of the motion. We are of opinion this was not sufficient diligence. If the process had been returned on 24th, and the case set for the 28th, further steps would be necessary, and an attempt at diligence would have demanded that other process be issued at once. The sheriff’s return does not show what diligence was exercised on his part to secure the witness, but he simply returns the process, stating witness cannot be found. Appellant could have, ascertained from the sheriff any fact that he knew about the witness, if he knew anything, or had heard anything of his whereabouts, or could have had the return amended so as to indicate where the witness could be found if the sheriff knew anything of it. But none of this' was done. The bill was accepted by appellant as qualified by the court. If the physical facts were such that Kennon was not approaching appellant or was not doing what appellant said he was informed that Morris would testify, then his testimony would not be material. However, from any viewpoint, we are of opinion the diligence is not sufficient; nor is the statement with reference to the testimony expected to be shown so stated as to be positive in its character that Morris would swear to such facts; nor does he state the means of information upon which he predicates his statement.

The only other question presented in the motion is want of sufficient evidence to justify the verdict. The state’s evidence is amply sufficient to justify the verdict. It is unnecessary to repeat or discuss it.

The judgment is affirmed.  