
    EVERSOLE v. STATE.
    (No. 10809.)
    Court of Criminal Appeals of Texas.
    March 23, 1927.
    Rehearing Denied May 4, 1927.
    1. Criminal law <&wkey;>l87 — Judgment of conviction pending on appeal cannot be made basis of plea of former conviction.
    Judgment of conviction pending on appeal cannot be made basis of plea of former conviction, and submission to jury of plea of former jeopardy in such case is more than defendant is entitled to.
    2. Criminal law &wkey;>l 151— Overruling motion for continuance will not be held erroneous in absence of abuse of discretion.
    In absence of showing of abuse of discretion of trial judge in overruling motion for continuance predicated on absence of witnesses, bill of exception complaining thereof presents no error.
    On Motion for Rehearing.
    3. Criminal law <©=>917(1), 1156(1) — Motion for new trial based in part on refusal of continuance is in court’s discretion, and ruling will not be disturbed save for abuse.
    Motion for new trial is in discretion of trial judge though based in part on refusal of continuance for absence- of certain witnesses, and in absence of abuse of such discretion his action thereon will not be disturbed.
    Commissioners’ Decision.
    Appeal from District Court, Fort Bend County; M. S. Munson, Judge.
    Otis Eversole was convicted of cattle theft and he appeals.
    Affirmed.
    F. O. Fuller and C. H. Chernosky, both of Houston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of the offense of cattle theft, and his punishment assessed at a term of two years in the penitentiary.

The contention of the state was that the ap= pellant took two head of cattle belonging to one T. U. Jones. The cattle were found in appellant’s pasture; Jones afterwards regaining possession of them.

The appellant defended on the ground that he purchased the cattle from one Howard-Smith, and introduced in evidence a bill of sale to said cattle signed by Howard Smith. Appellant also interposed a defense of former conviction, alleging that he had already been convicted for this same offense in cause No. 4956, State of Texas v. Otis Eversole, in the district court in which he was being tried in the instant ease.

The record discloses that the judgment of conviction in the case upon which the appellant bases his plea of former conviction is now pending on appeal in this court, same being cause No. 1080S. The learned trial judge submitted to the jury for their consideration appellant’s plea of former jeopardy. This was really more than the appellant was entitled to under the law. The rule seems to be, as laid down in Dupree v. State, 56 Tex. Cr. R. 562, 120 S. W. 871, 23 L. R. A. (N. S.) 596, 133 Am. St. Rep. 998, as follows:

“The plea of former conviction cannot be interposed where the judgment in which the conviction is claimed has been appealed from and is pending at the time the plea is interposed in the case on trial.”

Cause No. 4956, on the docket of the district court of Port Bend county, is the case upon which appellant bases his plea of former conviction. In that case appellant was tried and convicted and his punishment fixed at two years and is now pending in this court on appeal.

Appellant’s bill of exception No. 1 complains of the action of the trial court in over-ruling his motion for a continuance predicated upon the absence of three witnesses. This matter was considered by the trial court on motion for rehearing, and issue was joined by the state as to whether the testimony could be procured from any other source and as to the testimony being probably true. The court decided these issues against the appellant as shown by the judgment of the court overruling said motion for a new trial. This being a matter within the discretion of the court, and there being nothing in the record showing any abuse of such discretion, this bill as presented shows no error. McCulley v. State (Tex. Cr. App.) 280 S. W. 223; Cruz v. State (Tex. Cr. App.) 272 S. W. 486.

The remaining bills of exception appearing in the record presenting no error, the judgment of the trial court is affirmed.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant complains of our opinion on this rehearing solely because we upheld the action of the lower court in refusing his application for a continuance. He cites the case of Roquemore v. State, 54 Tex. Cr. R. 592, 114 S. W. 140. We perceive no contradiction at all between the holding in the Roquemore Case and the instant case. Appellant asked for a continuance because of the absence of certain witnesses. The continuance was refused. The motion for new trial was based in part on the refusal of the continuance. The motion for new trial was refused. This was complained of as error. In order to determine the question as to whether it was error, we look to the record. There is nothing in -the record leading us to believe that the witnesses named in the application for continuance were present when he claims they were, or that they would have given the testimony stated by appellant as expected of them. In such case the trial judge has discretion, and unless there be something in the record to lead us to believe that his refusal of the motion for new trial was an abuse of that discretion, we will uphold his action.

Believing the decision announced in our original opinion correct, the motion for rehearing is overruled. 
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