Buie v. State

Citations

• 1 Tex. Ct. App. 452

Syllabus

<p>1. Change oe Venue.—It is no longer an open question that, on an application for a change of venue on account of prejudice, the court may hear counter-affidavits, and may examine the defendant’s affiants touching their means of knowledge of the matters alleged in their affidavits.</p> <p>2. Continuance.—An application for a continuance for want of a witness-must show what was done with the process issued for the witness. If the witness resided in the county, it should be shown that the process was lodged with the proper officer; if out of the county, that it was duly and in good time forwarded to the proper officer; and, in either case, if the process has been returned, it should be exhibited as part of the application, or at least the return should be set out.</p> <p>3. Same.—Nor is it sufficient in such applications to state that the residence of the absent witness was not ascertained until “two or three days ago,” when affiant learned it was in a distant county. The efforts made to ascertain the witness’ residence should be shown, and that, when learned, its distance from the place of trial was so great that it was improbable, if not impossible, that process could be served in time and the attendance of the witness obtained.</p> <p>4. Same.—Diligence is not shown by the statement that affiant “ ordered a subpcena” for his absent witness.</p> <p>■6. Same.—See the opinion of the court at length, respecting the diligence requisite in a showing for a continuance on account of an absent witness.</p> <p>■6. Jury.—The accused neither challenged the array of the jury nor any particular jurors, but accepted the jury as summoned to try his case. After verdict against him, however, he moved for a new trial on several grounds, impeaching the qualifications of the jurors. Held, that by accepting the jury he waived any right he may have had to impeach its organization, and could not do so in his motion for a new trial.</p> <p>7. New Trial.—The only grounds for a new trial i