
    CHAMBERLAIN v. STATE.
    (No. 3951.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1916.)
    1. Criminal Law <g^543(l) — Evidence—Testimony at Former Trial — Absent Witness.
    "Upon proof that a witness who testified at a former trial was no longer a resident of the state, his testimony at such former trial was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig'. 543(1).]
    2. Criminal Law ®^G14(2) — Continuance-Absent Witnesses — Cumulative Testimony.
    In a prosecution for robbery, where it appeared from the trial court’s approval of a bill of exceptions to the court’s overruling of defendant’s second application for a continuance to secure the attendance of an absent witness to prove that a witness testifying at the former trial was no longer a resident of the state so as to make his former testimony admissible that the testimony of such nonresident was but cumulative of the testimony of defendant’s wife and another witness who were in court and neither of whom defendant placed on the stand, it was not error to refuse a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Doc. Dig. 614(2).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Stanley Chamberlain was convicted of robbery, and he appeals.
    Affirmed.
    C. A. Pippin and J. J. Fagan, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Oen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

The only bill of exceptions in the record relates to the action of the court in overruling appellant’s second application for a continuance. On a trial at a former term of the court Elmer Looper appeared as a witness and testified to facts which would tend to support appellant’s plea that he was not in Dallas at the time the robbery occurred, but was in Ft. Worth that night. Since that trial appellant says he has learned Looper has left the state permanently, and he could prove that fact by one Floyd Fox. Upon proof that Looper was no longer a resident of this state, then the testimony of Looper given at a former trial would become admissible. It is on account of the failure to secure the attendance of Fox to make this proof the application to continue is based. It is not stated it was expected to prove any other fact by Fox than that Looper was no longer a resident of the state. So that the application must be considered as an insistence on the testimony of Looper. It is extremely doubtful if the diligence used was sufficient. A subpoena was first issued for “George” Fox. Upon the return of the officer showing that no such person lived in Tarrant county, appellant, on the day the case was called for trial, said he was mistaken as to the name of the witness, that the witness was named “Floyd” Fox, and had a subpoena then issued for Floyd Fox. This witness was not secured. But, regardless of diligence, we do not think the bill as qualified by the court presents error. The court says in approving the bill:

“This case was tried at a former term of this court. The defendant was convicted, and a motion for new trial granted. Among other matters set up as ground for new trial in said motion were the absence of one G. E. Wagner, whom the defendant averred would testify that the said Wagner.left the city of Dallas with the defendant prior to the date alleged in the indictment, and remained with the defendant, not being separated from him at any time for a period of more than 30 minutes in the city of Ft. Worth until a day or two subsequent to the time alleged in the indictment that said offense was committed. In support of said allegations the defendant attached to said motion for a new trial the affidavit of C. E. Wagner, which states, in effect, the substance relied upon by the defendant as one of his grounds in said motion for new trial. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, and 15 of defendant’s motion for new trial in said cause, together with a copy of the affidavit of the said C. E. Wagner which' was attached to said motion for new trial, are attached to this qualification, marked Exhibit A, and made a portion hereof. That said motion for new trial was sustained, and at the trial of this cause, which resulted in the conviction from which defendant now appeals, the said O. E. Wagner was by bench warrant of this court produced in the courtroom from the county jail of Grimes county at the time announcement in the case was made, was sworn in as a witness, and remained in attendance upon court as a witness during the entire trial of this cause.
“That the wife of the defendant, Edna May Chamberlain, testified upon habeas corpus trial filed by the defendant in this cause, hearing of same being held May 13, 1915, in substance as follows: ‘That the defendant was at the house of his wife, who is a keeper of a house of prostitution in the city of Ft. Worth, Tex., on the night the offense alleged in the indictment in this cause was committed; that he remained in the city of Ft. Worth and at her place in said city until a period later in the night than the testimony in this cause shows the offense was committed in the city of Dallas.’
“That the testimony of the witness Elmer Looper could have only been cumulative of the testimony of the defendant’s wife and of the testimony of said C. E. Wagner, and was not the only testimony available to defendant by which to establish an alibi. That the defendant during the trial of the case, which resulted in the conviction from which this appeal is taken, did not introduce either his wife or the witness C. E. Wagner upon the stand in an attempt to establish an alibi in this cause. That, when the state rested its case, the defendant introduced no testimony, but closed his case; no attempt being made by the defendant to establish an alibi or to establish any other defensive matters; the defendant relying upon the supposed failure of the state to make out its case against the defendant.”

It is thus made to appear that this was the second application for a continuance, that the testimony of Looper would be but cumulative of the testimony of appellant’s wife and the witness Wagner, who were in attendance on court, and that appellant placed neither of them on the witness stand; and it has always been the rule in this court that, if witnesses are in attendance on court who would testify to the same facts as it is alleged in the application the absent witness would testify to, and they are not placed on the stand, there is no error in refusing to continue the case. Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, and cases cited in section 644, White’s Ann. Proc.

The only other ground is the alleged unsatisfactory evidence. We have carefully reviewed the entire record, and we are of the opinion the evidence will and does support the verdict.

The judgment is affirmed. 
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     