
    ELLIS v. STATE.
    (No. 4052.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.)
    1. Criminal Law <§=>594(1) — Continuance— Grounds — Cumulative Evidence.
    In a homicide case, the accused was not entitled to a continuance on the ground of the absence of a witness who had testified during the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. <§=>594(1).]
    2. Criminal Law <§=>603(7) — Continuance-Application.
    Accused’s application for a continuance which did not contain a statement of the facts expected to be proven by an absent witness was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1354; Dec. Dig. <§=>603(7).]
    3. Criminal Law <®=>596(3) — Continuance— Grounds — Impeaching Evidence.
    Accused was not entitled to a continuance on the ground of the absence of a witness whose testimony would be impeaching in character.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1330; Dec. Dig. <§=>596(3).]
    4. Criminal Law <§=>594(3) — Continuance-Grounds— Absence of Witness — Probability of Securing Testimony.
    Accused was not entitled to a continuance on the ground of the absence of a witness shown to be a transient person for whom process had been issued in several counties without success and whose attendance probably could not be obtained in another trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1332; Dec. Dig. <§=>594(3).]
    5. Criminal Law <§=>596(1) — Continuance-Ground — Diligence.
    Accused was not entitled to a continuance on the ground of the absence of a .witness who would testify about matters which can be shown by other available persons.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. <§=>596(1).]
    6. Criminal Law <§=>742(1) — Verdict—Credibility of Witnesses.
    Although the jury might have acquitted, it was their province to decide the credibility of the witnesses and weight to be given to their testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1719; Dec. Dig. <§=>742(1).]
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    T. J. Ellis was convicted of murder, and be appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for tbe State.
   DAVIDSON, J.

Appellant was convicted of murder,, bis- punishment being assessed at 30 years’ confinement in tbe penitentiary. There are two bills of exception found in tbe record. Tbe first bill is reserved to tbe action of tbe court overruling an application for a continuance, and the second bill to tbe overruling of tbe motion for a new trial.

Following tbe rule laid down in tbe recent case of Hall v. State, 185 S. W. 574, tbe court did not err in overruling tbe application for a continuance. One of the witnesses mentioned in the application testified during the trial. Tbe facts expected to be shown by another witness are not stated. The evidence of tbe third witness is, generally speaking, impeaching in character. Tbe fourth witness seems to have been a transient-person for whom process bad been issued to several counties, all of which was returned not executed because witness was not in tbe county. In each instance tbe process issued stated tbe residence of tbe absent witness not only as to county, but where be could be found, but tbe officer in each instance on tbe return stated be was not to be found in tbe specified county. This was a second application. Tbe testimony is cumulative and most of it impeaching in its nature. The transient witness is named Breeze. By him it'was ex-peeted to be shown that he had known the deceased for quite a number of years, and that he had known him to have difficulties with other parties in which he used his pocket knife, cutting one or more of them with it. The name of one of these parties was Davis, who lived in Wharton county. Process was not issued for Davis, so far as the application is concerned, and no reason given for not so issuing. The name of no other party is given with whom deceased had a difficulty. If the deceased had trouble, difficulties or fights with other people, and these facts could be shown by Breeze, they could have been produced as well from them as from Breeze. The difficulty between appellant and the deceased occurred in Brazoria county, where the parties, defendant and deceased, were raised. Following the rule laid down in the recent case of Hall v. State, 185 S. W. 574, as applying to the witness Breeze and his being a transient person, it would hardly be probable that his testimony would be obtained upon another tidal, and on this trial it could have been supplied by the parties with whom deceased had had such difficulties. One of the issues was that deceased was making an attack on appellant with a pocket knife at the time he was shot. There is testimony going to prove this fact, though it is denied by the only eyewitness, the mother of the deceased.

It is contended also that the verdict is wrong and excessive as well. Under the state’s theory we think the verdict is justified. The state’s ease, as to the immediate facts, was made by the mother and stepfather of the deceased. The mother was an eyewitness to the difficulty. The testimony of the stepfather and his subsequent statement tends to show that he did not see the difficulty, though he testified to the details of it. In the opinion of the writer it would hardly be probable that the jury gave any credence to what he swore. The jury could have acquitted, but it was their province to decide the credibility of the witnesses and weight to be given their testimony. Ignoring the testimony of the Stepfather, which the writer does, the evidence of the mother of the deceased was sufficiently strong to justify the jury in their conclusion.

There were no exceptions to the charge, and the court gave the only charge asked by appellant. Under this view of the record we would hardly feel justified in reversing this judgment.

The judgment is therefore affirmed. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     