
    MILLS v. STATE.
    (No. 5055.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    Rehearing Denied June 28, 1918.)
    1. Criminal Law <@=>595(1) — Continuance— Absence or Witness — Materiality oe Expected Evidence. . „
    In prosecution for homicide, absence of witness expected to prove that the wound penetrated straight in, and that therefore deceased was standing straight when accused stabbed him, was not sufficient ground for continuance; it being immaterial whether wound was straight or slanting or whether deceased was stooping or standing straight at time of stabbing.
    2. Criminal Law <@=>603(11) — Continuance — Application — Diligence in Securing Expected Witness.
    An application for continuance based on absence of witness must state facts .showing that due diligence had been used in effort to obtain the witness.
    3. Criminal Law <g=>603(2) — Continuance-Application — Absence oe Witness.
    Application for continuance based on absence of witness must state residence of witness, and time when he left the county of his residence, if temporarily absent therefrom.
    4. Criminal Law <@=>598(7) — Continuance— Absence oe Witness — Diligence — Suing Out Process.
    Where a subpoenaed witness moved to another county before the term of court at which the case was called for trial, the party applying for continuance because of absence of such witness has not exercised proper diligence in effort to procure his attendance if he did not again subpoena witness in the county to which he had moved.
    5. Criminal Law <@=>959 — New Trial — Right oe State to Introduce, Evidence.
    Under Code Civ. Proc. 1911, art. 841, providing that state may take issue with defendant upon truth of any cause set forth in motion for new trial, on motion for new trial based on overruling of motion for continuance because of absence of witness, state had right to show lack of diligence in procuring attendance of such witness.
    6. Criminal Law <@=>1144(18) — Appeal—Bill oe Exceptions — New Trial.
    Where bill of exception does not show evidence on which court overruled motion for new trial, the evidence will be presumed on appeal to have been sufficient to have sustained such ruling.
    
      Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Ernest Mills was convicted of murder,- and lie appeals.
    Affirmed.
    Dutch & Tipps, of Henderson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.

The evidence, without any contradiction, by several witnesses showed that appellant stabbed deceased in the head with a knife and killed him without any justification or provocation. The circumstances of the stabbing and killing were such as to be sufficient to show that the killing was with malice aforethought by appellant.

The only question in the case is whether or not the court erred in overruling his motion for a continuance and in overruing his motion for new trial on that ground.

The motion for continuance was made because of the absence of Dr. Barton. . Dr. Barton was not present when the stabbing occurred and knew nothing about the facts surrounding the parties at that time. In order to attempt to show the materiality of the doctor’s testimony, he alleged that the eyewitnesses for the state would testify that deceased was somewhat in a stooping position preparing to get down on his. knees when appellant stabbed him in the head, and that the theory of the state on the trial would be that the wound did not penetrate straight in, but in a kind of slanting position. That he expected to prove by ⅛⅛ doctor, who was called to. see deceased the next day after the stabbing, that if it had been made while deceased was in a stooping position the wound would not have penetrated straight in as it did, but would have to be slanting toward the head of deceased. Whether the deceased was standing straight or stooping at the time appellant stabbed him could not have been very material, and such an inference from the doctor’s testimony, even if he had testified as claimed, would not have been material in the case. The stab, without any doubt, killed the deceased. Appellant stabbed him, and whether the knife blade went in straight or slanting could make no difference. However, if it could be conceded that the testimony of the doctor would in any contingency have been material, no reversible error is shown.

The record in this matter shows this state of fact: The killing occurred the last of April, 1917. The examining trial was held the day after the deceased died, at which appellant and his attorneys were present, and the eyewitnesses of the killing for the state then all testified. Of course, appellant and his attorneys were fully advised what each of these eyewitnesses would testify. The indictment was returned June 2Sth. The case was to be tried on July 17th. At that time said witness Dr. Barton lived in Busk county near where the killing occurred. He was subpoenaed by appellant to attend the trial on July 17ttí. The motion for continuance does not state that said witness attended the court at that time or at any other time. It states that the cause was not called for trial on that date. Why it was not, or what disposition .was then made of it, was not alleged. The law is that “it devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law.” And the state is not required to show a want of diligence in opposition to a continuance.

“Nothing, is presumed in aid of an application for a continuance, but the burden, is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments. Cantu v. State, 1 Tex. App. 402; Murray v. State, Id. 417; Buie v. State, Id. 452; Bowen v. State, 3 Tex. App. 617; Robles v. State, 5 Tex. App. 346.” Walker v. State, 13 Tex. App. 647, 648.
Again:
“An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, s ⅜ * and it must appear that all the means provided by law were resorted to by the defendant to obtain the testimony and were resorted to promptly.” Barrett v. State, 18 Tex. App. 67.
Again:
“The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments.” Long v. State, 17 Tex. App. 129.
Again:
“If there is a lack of diligence, apparent from the application or otherwise,” the law’s “mandate is inexorable and the trial must proceed.” Skipworth v. State, 8 Tex. App. 139.
The statute (article 530, C. O. P.) enacts:
“It shall be understood that a witness refuses to obey a subpoena: (1) If he is not in attendance on the court on the day set apart for taking up the criminal docket or any day subsequent thereto, and before the final disposition or continuance of the particular case in which he is a witness. (2) If he is not in attendance at any other time named in a writ.”
Judge White, in section 600 of his An. O. O. P., says: “Continuance is properly refused always where there is a want of diligence”— citing a considerable number of cases to that effect. Giles v. State, 66 Tex. Cr. R. 642, 148 S. W. 317.

The m§tion for continuance alleged that said witness, Dr. Barton, is now “located at Camp Logan base hospital,' Harris county, Texas.” The law is:

“An application for a continuance must state the residence of the witness; and, when it states that the witness is temporarily absent, it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Cr. R. 105 [35 S. W. 648]; Vanwey v. State, 41 Tex. 639 ; Wolf v. State, 4 Tex. App. 332; Thomas v. State, 17 Tex. App. 437; Colton v. State, 7 Tex. App. 50. Where the application for a continuance did not show at what time the defendant ascertained that the witness was a resident of the County to which he had a second attachment issued, the diligence was insufficient. Hughes v. State, 18 Tex. App. 130.” Furnace v. State, 79 Tex. Cr. R. 65, 182 S. W. 457.

The law further is that where a witness lives in the county where the case is pending, who has been subpoenaed, and removes therefrom before the next term of court at which the ease is called for trial, it is the duty of the appellant to again have him served with process to the county where he has removed. Nesbitt v. State, 60 Tex. Cr. R. 274, 155 S. W. 203; Jones v. State, 61 Tex. Cr. R. 656, 136 S. W. 57; Harvey v. State, 35 Tex. Cr. R. 558, 34 S. W. 623; Lowe v. State, 11 Tex. App. 253.

The motion for a continuance does not allege that the absent witness was in attendance upon the court when the term at which he was tried began, nor at any other time of said term of court. The term began January 17, 1918. His trial did not begin until January 29th. No process was issued for the witness to Harris county at any time. The motion fails to state that the witness was in any way notified to be present at the beginning of said term or on the date on which the case was called for trial. The slightest diligence by appellant would require that the witness in some way he notified to be present, since he had left the county. The means of communication by telephone or telegraph are not shown to have been used to inform the witness or to get him present at the trial.

But aside from all this, appellant made a motion for a new trial because of the overruling of his motion for a continuance. The state especially contested the appellant’s motion for new trial, not only on that ground, but all the others set up in his motion. At that time the state had the right to contest the diligence of appellant to secure the attendance of the said witness and did do so. Richardson v. State, 28 Tex. App. 216, 12 S. W. 879; Walker v. State, 13 Tex. App. 618; article 841, C. C. P. The judgment of the court expressly states that he heard evidence before acting upon said motion and after hearing the evidence overruled the motion for new trial. The court’s qualification of appellant’s hill expressly states that the state contested his motion for new trial, that he heard evidence on it, and that the evidence introduced by the state on that occasion was not contained in the bill of exception. Under such circumstances, this court has all the time held in a uniform and long line of decisions that it inust presume, and does, that thé evidence heard by the lower court was .sufficient to show that appellant was not entitled to a new trial. See Reyes v. State, 196 S. W. 533, where a large number of cases are collated.

So that in no contingency does the action of the court show any error in overruling the appellant’s motion for a continuance or his motion .for new trial on that ground. On the contrary, the record without doubt shows that the action of the court was legal and correct in both instances.

The judgment is affirmed. 
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