
    Antonio Carrero v. The State.
    
      No. 17.
    
    
      Decided April 29.
    
    New Trial — Absent Witness. — On the calling of his case for trial, defendant notified the court that he desired the testimony of an absent witness, for whom the court ordered process, and defendant was returned to jail to await its execution; and subsequently, on the same day, defendant at his own request announced to the court that he was ready for and demanded a trial of his cause. Held, that his motion for a new trial, based upon the ground that he was deprived of the testimony of the witness, for whom process had been issued by the court, and who had not appeared at the trial, was properly overruled.
    Appeal from the District Court of Guadalupe. Tried below before Hon. George McCormick.
    Appellant was indicted for assault with intent to murder one Jesusa Ortez, and at his trial was convicted of this offense and sentenced to five years in the penitentiary.
    There is no statement of facts or bill of exceptions contained in the record.
    
      W. H. Brooher, for appellant.
    
      B. L. Henry, Assistant Attorney-General, for the State.
   DAVIDSON, Judge.

This appeal is prosecuted from a conviction of assault with intent to murder, in which appellant’s punishment was assessed at a term of five years in the penitentiary.

The record contains neither a bill of exceptions nor a statement of facts, and the sole ground of the motion for a new trial urged in the court below and presented here for revision is, that defendant was deprived of a fair and impartial trial, in that he was denied the right to have a certain witness present at his trial to testify in his behalf. He did not in writing or formally apply for a continuance or postponement of his cause to obtain the testimony of the absent witness. In this connection, it is shown by the record that when, on the morning of November 21, defendant was brought into open court for the purpose of being placed upon his trial, he informed the court of his desire to have the absent witness present to testify in his behalf, and would not be ready until his attendance was procured. The court at once ordered issuance of necessary process for the witness, and defendant was returned to jail to await the execution of the process. At noon defendant informed the sheriff “ that he had two witnesses present, and wanted a trial, and would not wait for the absent witness.” At his request he was, after the noon recess, brought into the court, and announced to the court that his two witnesses were present, and he was ready for and demanded a trial of his cause. His request being granted, he was placed upon his trial. The motion for a new trial was overruled, and we are of opinion that the ruling was correct. The judgment is affirmed.

Affirmed.

Judges all present and concurring.  