
    BRANNAN v. STATE.
    (No. 10943.)
    Court of Criminal Appeals of Texas.
    Oct. 26, 1927.
    State’s Rehearing Granted Nov. 23’, 1927. Appellant’s Rehearing Denied Jan. 11,1928.
    On State’s Motion for Rehearing.
    1. Criminal law <&wkey;S87 — Application for continuance for absent witness after court had refused continuance, but granted postponement, being “subsequent application,” was defective in omitting statutory requisite (Code Cr. Proc. 1925, art. 544).
    Where defendant, when case was called for trial, sought continuance on account of absence of his wife, and court overruled application for continuance, but granted postponement to January 31, 1927, at which time defendant presented application for continuance, again basing request on absence of his wife, latter application was “subsequent application” within meaning of Gode Cr. Proc. 1925, art. 544, and was fatally defective in omitting to aver that wife’s expected testimony could not be procured from any other source.
    2. Criminal law <&wkey;9!7(l) — Subsequent application for continuance, being properly overruled because defective, formed no- basis for complaint, when court overruled motion for new trial predicated on denial of continuance (Code Cr. Proc. 1925, art. 544,).
    Where subsequent application for continuance for absent witness was properly overruled because it did not contain averment that wit-' ness’ expected testimony could not be procured from any other source, as required by Code Or. Proc. 1925, art. 544, application formed no basis for complaint when court overruled .motion for new trial predicated on denial of continuance.
    On Appellant’s Motion for Rehearing.
    3. Criminal law &wkey;>587 — Requirement that subsequent application for continuance must aver that expected testimony cannot be procured from-other sources is mandatory (Code Cr. Proc. 1925,. art. 544).
    Requirement of Code Cr. Proc. 1925, art. 544, that subsequent applications for continuance for absent witness must contain averment that expected testimony cannot be procured from any other source known to defendant, is mandatory.
    4.Criminal law <&wkey;687 — Second application for continuance for absent witness must conform to statute, nothing being presumed in its favor (Code Cr. Proc. 1925, art. 544).
    Second application for continuance for absent witness must conform strictly to Code Cr. Proc. 1925, art. 544, nothing being presumed in its favor.-
    Appeal from District Court, Hill County; Walter L. Wray, Judge.
    Bill Brannan was convicted of felony theft, and he appeals.
    Affirmed.
    Collins & Dupree, of Hillsboro, and Chas. C. Crenshaw, of Lubbock,, for appellant. - William C. Morrow, Co. Atty., of Hills-boro, and Sam D. Stinson, State’S Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORB, J.

Conviction for felony theft; punishment, two years in the penitentiary.

Appellant was charged with the theft of two bales of cotton which disappeared from a cotton yard in Abbott, Hill county, Tex., between, March 9 and 12, 1926, and were discovered on March 12th at a compress in Waco some 25 miles from Abbott.

Appellant sought a continuance because of the absence of his wife. No question of diligence arises. Complaint of the refusal to continue or postpone the case is made in three bills of exception, neither of which appears to be qualified. The affidavit of the absent witness was attached to the motion for new trial, and its statements accord with the testimony set up in the application as expected from the witness. The court qualifies the bill of exception taken to the refusal of motion for new trial by saying he did not regard the testimony as material, or at least sufficiently so as to make it likely that a different result would be obtained if such testimony was present. In this connection we observe that the case was tried at one time when the wife was present, and resulted in a hung jury.

Four men positively identified appellant as the man who brought the two bales of cotton in a trailer attached to a Ford car to a certain compress in Waco on the morning of March 10, 1926; arriving at said place about 7 o’clock, as testified to by one of the men, having the cotton weighed about 8:30, as testified by two of the others, and sold at ' about 9:15 or 9:20, as testified by the fourth man. Three of these men went to Bynum in Hill county, near which village appellant lived, shortly after the cotton was identified by its owner at the compress. A Mr. Pierce accompanied them, and brought appellant from his home down to where these men were waiting. When he came, Pierce asked these men if appellant was the man they were looting for. One of the men, a Mr. Green, the man who bought the cotton, said, “No, he is not the man.” The others said nothing. Green testified on the trial that appellant was the man, and that he knew he was not telling the truth at the time he said to Mr. Pierce that appellant was not the man. After they declined to identify appellant, he got in his car and drove away. These four men, in giving testimony, were asked in reference to some particular matters of dress, and testified that appellant had on a rather large hat, a long overcoat, when in Waco with said cotton, etc.

The defense was an alibi and a denial of the guilt generally. Appellant testified that he left his home near Bynum on the 9th of March, and drove in a Eord car with a trailer attached to Waco for the purpose of getting some hands to work; that he took the trailer to bring their things back in. He detailed his efforts to find hands during the afternoon of the 9th, and produced in evidence a list of names which he said he got from the chamber of commerce at Waco. He says he found only one man, and this man could not go with him until the next morning. Appellant testified that he then went to the Exchange hotel; and called his wife over long distance and told her he had not been able to get hands, but would get one the next morning. He then further said he went to the Cadillac hotel, which was a small upstairs place, found a negro porter in charge, got a room from this porter, .and spent the night in same. He said the next morning about 7 o’clock he found his man, and the man told him he had changed his mind and could not go with him. He then left Waco and drove to Hillsboro, where he ate breakfast at the Sullivan restaurant about 8:30 or 9 o’clock, and then drove home; it being about 45 miles from Waco to Bynum. He reached home about 10 or 11 o’clock. He said he had on a light white hat, and had no overcoat on the occasion of his going to Waco. He introduced the negro porter at the Cadillac hotel, who testified positively that appellant came to his place about 8 o’clock on the night of the 9th, and that witness assigned him a room; and then himself remained somewhere around the stairs where he could see all persons who went in and came out during the night, and that appellant did not come out until the next morning somewhere in the neighborhood of 7 o’clock. Appellant also introduced Mr. Sullivan, who testified he had a restaurant in Hillsboro.on the 10th of March, and that appellant came to his place and ate breakfast about 8:30 or ,9 o’clock, according to his best recollection, on that date. These matters are stated in order that it may appear that the testimony of appellant’s wife, if true, was very material. She states in her affidavit that he had no overcoat when he left home, and that he had on a light hat; that he called her up from some place in Waco on the night of the 9th, and said the things to her which appellant testified to; aiso that he came home on the morning of the 10th between 10 and 11 o’clock. We • find ourselves unable to escape the conclusion that this testimony was very material to the defense. It had been raining, and the roads were muddy. Mr. Green testified that he gave appellant a check or cotton acceptance for the cotton in Waco about 9:15 or 9:20 a. m. The acceptance which was in evidence showed it had been presented and cashed at the Liberty National Bank on the same day. It might be considered a matter of some difficulty for appellant to have received and cashed this check after 9:20 o’clock and to have driven to Hillsboro some 33 or 34 miles distant in time to eat breakfast by 9 o’clock, and then to reach his home near Bynum by 10:30 or 11 o’clock. The weight of such testimony as affecting the guilt or innocence of the defendant is for the jury. The fact that, when the wife gave this testimony on a former occasion, the jury declined to convict him, may be looked to as a circumstance. We are of opinion that the trial court should have granted a new trial.

The judgment will be reversed, and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, J.

The state has filed a motion for rehearing calling attention to a matter not discussed in our original opinion. An argument in behalf of the state was then on file which presents the point now insisted upon, but it was in a separate document from the brief filed by the state, and the document containing the argument was overlooked.

The state insists that the application for continuance — the refusal of which was made the basis of complaint — was in fact a second application for continuance, and was fatally .defective for having omitted therefrom the statutory requisite demanding an averment that the expected testimony “cannot be pro-' cured from any other source known to the defendant”; hence that the application was properly overruled in the first instance, and, being fatally defective, formed no basis for complaint whén the court overruled the motion for new trial predicated upon denial of the continuance. The court’s explanation upon the various bills shows that this case was filed on the 26th day of March, 1926, and upon a trial had in April following that the jury failed to agree upon a verdict; that it was again called for trial on the 24th day of January, 1927, at which time appellant sought a continuance on account of the absence of his wife. The court overruled the application for continuance, but granted a postponement to January 31, 1927, at which time appellant presented the application íor continuance now under investigation, again basing the request upon the absence of his wife, but not averring that her expected testimony could not be procured from any other source. It is stated in the application that it was appellant’s first application. He doubtless so regarded it, but it has been often held to be a subsequent application under the facts stated. Griffith v. State, 62 Tex. Cr. R. 642, 138 S. W. 1016; Coffey v. State, 82 Tex. Cr. R. 57, 198 S. W. 326; Jeffers v. State, 104 Tex. Cr. R. 199, 283 S. W. 786; Ferguson v. State, 101 Tex. Cr. R. 670, 276 S. W. 919; Williams v. State, 102 Tex. Cr. R. 559, 278 S. W. 1103. In Tinker’s Case, 99 Tex. Cr. R. 369, 269 S. W. 778, it was said;

“The application being a ‘second’ request for continuance is fatally defective in omitting to aver that the testimony expected from the absent witnesses could not be procured from any other source known to appellant.” Subdivision 1, art. 544, C. C. P. 1925.

Such is the holding in Henderson v. State, 5 Tex. App. 134, where the absent testimony was desired on the question of alibi. For the requisites of a second or any subsequent application for continuance many authorities are collated under section 310, Branch’s Ann. Tex. P. C., and in the notes under article 544, 1 Vernon’s Ann. Tex. O. C. P. p. 466.

Under the settled law appellant’s application for continuance was a second application, and fatally defective in omitting one of the' statutory requisites. The trial court therefore was justified in overruling it, and the application forms no basis for a complaint in the motion for new trial on account of the denial of the continuance in the first instance. It is apparent from what has been said that we were in error in the original opinion ordering a reversal.

We have examined the bills of exception presenting other questions, and find them to be without merit.

From what we have said it follows that the state’s motion for rehearing should be granted, the order of reversal be set aside, and the judgment of the trial court be affirmed.

On Appellant’s Motion for Rehearing.

MARTIN, J.

Appellant has filed a motion for rehearing, supported by an able and plausible argument to the effect that this court was in error in holding his application for a continuance fatally defective because the rule inhibiting the granting of subsequent applications for cumulative testimony could not apply to evidence relating to the defense of an alibi, since this character of testimony has been held to be not cumulative in the legal sense of that word.

Appellant cites the cases of Smythe v. State, 17 Tex. App. 244; Terry v. State, 100 Tex. Cr. E. 161, 272 S. W. 466, and others, which appear to hold that testimony relative to the defense of an alibi is not cumulative.

One of the indispensable statutory requisites prescribed by article 544, C. C. P., for subsequent applications, is that requiring an averment that the expected testimony “cannot be procured from any other source known to the defendant,” and we think this provision is mandatory.

“A second application must conform strictly to the statute, nothing being presumed in its favor.” Henderson v. State, 5 Tex. App. 134; Barrett v. State, 9 Tex. App. 33.

The Legislature undoubtedly had the right to command the insertion of this averment in subsequent applications, and its mandate is binding upon this court.

In the case of Goode v. State, 57 Tex. Cr. R. 232, 123 S. W. 602,. Judge Ramsey, speaking for the court, uses the following language:

“It has also been uniformly held that nothing will be presumed in aid of a second application for continuance. * * * And that strict compliance with all the requirements of the statute is essential to its sufficiency. * * * It is, of course, a well settled rule that * * * the granting or refusal 'of subsequent applications for continuance has always been a matter discretionary with the court.”

Believing that the disposition of the case on the state’s motion for rehearing was correct, the appellant’s motion for rehearing is accordingly overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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