
    McDUFF v. STATE.
    (No. 6467.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.
    Rehearing Denied Jan. 18, 1922.)
    
      1. Jury <@=>70(l) — Special venire held proper-'y refused in rokbery case.
    Where indictment in robbery case' made no reference to the use of firearms, and the case was not submitted to the jury as a capital offense, there was no error in refusing a special venire.
    2. Criminal law <§=>595(9) — No abuse of discretion in refusing continuance.
    In a prosecution for robbery, where accused testified to the defense of alibi, and said that he was at the home of a certain person, held, that court did not abuse its discretion in denying an application for a continuance on account of the absence by reason of sickness of the person at whose home accused testified he was, the time ne was at such person’s home being indefinite.
    Appeal from Criminal Distliet Court, Dallas County; C. A. Pippen, Judge.
    Lewis MeDuff was convicted of robbery, and appeals.
    Affirmed.
    Ed B. Freeman, Howard H. Dailey, J. T. Kelly, and P. C. Short, all of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for robbery; punishment fixed at confinement in the penitentiary for a period of 25 years.

The indictment makes no reference to the use of firearms, and the case was not submitted to the jury as a capital offense. There was no error in refusing a special venire. Gonzales v. State, 88 Tex. Cr. R. 250, 226 S. W. 405.

The robbery was committed at nighttime, and the appellant was definitely identified by the injured party as the perpetrator of the offense. He lived near by, and was well known to the witness.

Appellant testified to the defense of alibi. His testimony on the subject was indefinite as to the time of the day, but in it he said that he went to the home of his sister-in-law, Mattie Parton, and made some coffee. He presented an application for a continuance on account of the absence of Mattie Par-ton, who, at the time of the trial, was alleged to have been sick. A subpoena was issued and served upon her upon the day of the trial. The application was indefinite, and alleged in general terms that, at the time of the offense, appellant was at the home of Mattie Parton. It appears from the facts developed that the appellant, the injured party, and Mattie Parton were all residents of the same locality. The affidavit of the witness to the effect that she would not give the testimony was used on the motion for new trial. We are unable to conclude that, in overruling the motion to continue or the motion for a new trial, the court abused the discretion which is vested in it by law.

No error appearing, the judgment is affirmed.

On Motion for Rehearing.

We must reiterate our conclusion that the record reveals no error warranting reversal: The state’s witness fixes the time and place of the robbery, and definitely identifies the appellant as its perpetrator. It took place on the 28th of February, between sundown and dark.

In his application for a continuance, it is asserted that the absent witness, Mattie Par-ton, would testify that at the very time the offense was committed the appellant was at the home of the witness, and not in proximity to the place of the commission of the offense. No details are given in the application as to the hour of the day at which the appellant was at the witness’ house, but the conclusion is relied upon tliat lie was there when the offense was committed.

Appellant says that on the day of the robbery, he worked for a man named Cramer; that he spent his nights on Taylor street, near the home of Yale, the injured party; that he did not rob Vale; that he first learned of it when he was told that his stepson Miller had been arrested for it; that when he quit work on the day in question, he went to “Prank’s” house; that he and Prank went and got some coffee and returned to the house of Mattie Parton and made some coffee.

Cramer, appellant’s employer, was not called as a witness. The time that he left his work is not revealed by appellant; the person whom he calls “Prank,” who, from his testimony, was with him at the time he was at the home of the absent witness Mattie Par-ton, is not called as a witness, and appellant’s testimony does not designate the hour he claims to have been at her house. From the qualification of the bill, it appears that the absent witness, Mattie Parton, who was a sister-in-law of the appellant, made an affidavit, which was used on motion for new trial, to the effect that she would not give the testimony imputed to her in the motion for a continuance.

In the light of the facts developed upon the trial, and upon the hearing of the motion for new trial, the action of the trial judge in overruling the motion was clearly not an abuse of his discretion.

The motion for rehearing is overruled. 
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