Collins v. State

Citations

• 24 Tex. Ct. App. 141
• 5 S.W. 848
• 1887 Tex. Crim. App. LEXIS 177

Syllabus

<p>1. Practice—Continuance—New Trial.—However complete may be the diligence used to secure the presence of absent witnesses, as shown by application for continuance, the refusal of the continuance is not ground for new trial if the absent testimony in the light of the evidence adduced on the trial is not probably true.</p> <p>8. Same—Evidence.—Under the provisions of article 772 of the Code of Criminal Procedure, the written testimony of a witness, taken at the examining trial of the accused, can be read in evidence “when, by reason of age or bodily infirmity, such witness can not attend.” Under this rule it is not essential that the bodily infirmity shall amount to a permanent disability. As a predicate for the admission of the written testimony on the examining trial, it was shown in this case that the witness was at home, in another county, forty miles distant, where, at the time of the trial, and for months before, he had been confined to his house from the effects of an attack of measles, which had destroyed one of his eyes and left him a chronic invalid, with constant pains in his head and palpitation of the heart. Held, that in admitting the written testimony in evidence the trial court did not err. See the opinion on the question.</p> <p>3. Same—Confessions—Charge of the Court.—To the rule that a confession is inadmissible if made by an accused when in arrest, unless made after warning that the same will be used as evidence against him, there is an exception when the confession comprehends a statement of facts “found to be true, and which conduce to establish his guilt.” Inasmuch as the confession of Lindly, which was made during his confinement in jail, and in the absence of Collins, though made without warning, comprehended a statement of facts found to be true, and which conduced to the establishment of guilt, it was, upon the joint trial of Collins and Lindly, admissible as against Lindly, but not as against Collins. The trial court, however, instructed