Browning v. State

Citations

• 26 Tex. Ct. App. 432
• 9 S.W. 770
• 1888 Tex. Crim. App. LEXIS 207

Syllabus

<p>1. Practice—Continuance—New Trial.—Under the statutory rules of practice in this State, an accused, whose application for continuance has been refused, and who has been convicted, is entitled to a new trial as a matter of right when, in the light of the evidence adduced upon the trial, the absent testimony set out in the application for continuance is material to the defense, and is probably true. Unless such absent testimony, if probably true, would, if procured, tend to disprove the guilt of the accused, it would be too immaterial to authorize a new trial because of the refusal of the continuance.</p> <p>2. Same—Practice in the Court oe Appeals.—This court will not revise the action of the trial court in refusing a new trial because of its previous refusal of a continuance unless it be made to appear, not merely that the accused might probably have been prejudiced by such ruling, but that it is reasonably probable that, had the absent testimony been before the jury, a verdict more favorable to the defendant would have resulted. See the opinion for the substance of absent testimony set forth in the application for continuance and held as to one witness to be immaterial, and as to the other not probably true; wherefore the trial court did not err in refusing a new trial.</p> <p>3. Murder—Pact Case.—See the statement of the case for evidence held sufficient to support a conviction for murder in the first degree.</p>