
    PERKINS v. STATE.
    (No. 3287.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Criminal Law (§ 598) — Continuance-Absence oe Witness — Diligence.
    Where accused was indicted on March 6th and tried on June 4th following, the securing of a subpoena on May 7th for a witness who was stated in the application for a continuance to be temporarily absent from the city, which subpoena was returned unserved on May 28th and no other process issued, does not show sufficient diligence to entitle accused to the continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law •(§ 1093) — Appeal—Bill oe Exceptions.
    A bill of exceptions by one convicted of murder, which shows only that the unserved subpoena for a witness on account of whose absence a continuance had been asked was offered in evidence for the purpose of showing that the defense had endeavored to secure the presence of such witness, and excluded, and that the subpoena would have shown the date on which it was issued, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dee. Dig. § 1093.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Richard Perkins was convicted of murder, and he appeals.
    Affirmed.
    Stanley Thompson, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For ocher cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of murder, and Ms punishment assessed at ten years’ confinement in the penitentiary.

There are but two questions raised necessary to decide. Appellant made a motion for continuance on account of tbe absence of the witness Dan Sasser, whom he alleges is a resident of said Harris county, but at the time he made his application was “temporarily out of the city," and is expected to return before tbe next term of tbis court. The offense is alleged to have been committed February 9, 1914. He was arrested before he was indicted. The indictment was returned March 6, 1914. He had no subpoena issued for said witness until May 7, 1914, which he says was returned by tbe sheriff on May 28, 1914, not executed as to said witness. The trial occurred, and he made his motion to continue on June 4th following, seven days after the process was returned unexecuted. He had no other process issued for the witness, and certainly seven days was ample time to have secured his attendance, even if he was temporarily out of the city, if appellant had used any diligence whatever to have secured him. Appellant used no diligence to procure the attendance of his witness, and the court did not err in overruling his motion, nor in refusing a new trial because thereof. O. O. P., art. 608, subd. 6; Mitchell v. State, 36 Tex. Cr. R. 299-307, 33 S. W. 367, 36 S. W. 456; Buie v. State, 1 Tex. App. 456; Barrett v. State, 18 Tex. App. 67; Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note; Giles v. State, 148 S. W. 321 et seq. and cases there cited.

Appellant, in another bill, after reciting the style and number of the cause, the court, and be it remembered, etc., says:

“That on the trial his counsel offered in evidence the subpeena for the absent witness, Dan Sasser, for the purpose of showing that he had tried to get the witness Sasser into court, to which the state objected, and the court sustained the objection. That said proceeding would have shown that it was issued on May 17, 1914,”

This is, in substance, the full of the bill. It shows no error.

It is unnecessary to recite the evidence. It is clearly sufficient and ample to sustain the verdict of the jury. The court gave a full and complete charge submitting every issue in appellant’s favor in the most- favorable light for him. There was no complaint before the trial to the charge of the court in any particular. There is nothing else raised that is necessary to state or discuss.

The judgment is affirmed.  