
    BECKWITH v. STATE.
    (No. 10183.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.)
    1. Criminal law <&wkey;l 111 (3) — Where court in approving bill of exceptions stated motion for continuance was second application, rule pertaining to subsequent applications governs.
    Where court in approving hill of exceptions complaining of overruling of motion for continuance stated it was a second application, it was governed by rule pertaining to subsequent applications.
    2. Criminal law <&wkey;6l4(l) — Overruling second application for continuance, which merely stated that defendant had reason to believe it would be possible to locate absent witness at next term, held proper (Vernon’s Ann. Code. Cr. Proc. 1916, art. 609, subd. 2).
    Overruling second application for continuance, which merely stated defendant had reason to believe that it would be possible to locate absent witness by next term of court, held proper, since, under Vernon’s Ann. Code Or. Proc. 1916, art. 609, subd. 2, second application must state that defendant has reasonable expectation of procuring absent testimony at next term.
    ■3. Criminal law &wkey;»6l4(l) — Second application for continuance was properly overruled, where absent witness was a transient and his location speculative.
    Where from facts stated in second application for continuance it was clear that absent witness was a transient whose residence was unknown and location of whom was entirely speculative, application was properly overruled.
    <g^:pFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Roy Beckwith was convicted of an aggravated assault, and he- appeals.
    Affirmed.
    Fred E. Young and Umphres, Mood & Clayton, all of Amarillo, for appellant.
    Sam. D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is an aggravated assault, and the punishment is a fine of $100 and one year in the county jail.

Appellant concedes in his brief that the only question presented which deserves the consideration of this court is concerning the trial court’s action in overruling his application for a continuance. The court in approving the bill of exceptions complaining at the overruling of the motion states that this is a second application. Under this statement of the court, it is governed by the rule pertaining to subsequent applications. In subsequent applications it is incumbent upon the appellant to state that the defendant has reasonable expectation of procuring the same at the next term of the court. Subdivision 2, art. 609, Vernon’s Ann. Code. Cr. Proc. 1916.

The application does not so state. Instead, it merely states that defendant has reason to believe that it will be possible to locate said witness by the next term of this court. The authorities are clear to the effect that 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. We think there is a clear distinction between saying that it will be possible to locate a witness by the next term of the court, and stating, as the statute requires, that 'there is a reasonable expectation of procuring the attendance of said witness at the next term of court. The application does not conform to the statute, and it was properly overruled. In addition to what has been said, we think it is also clear that from the facts stated in the motion itself the absent witness is a transient whose residence is unknown and the location of whom is entirely speculative and problematical.

Finding no error in the record, the judgment is affirmed.

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.  