De Warren v. State

Citations

• 29 Tex. 464

Syllabus

<p>Articles 437 and 437a provide, that when the witness resides out of the county in which the prosecution is pending, the defendant shall be entitled, on application under oath, stating certain facts, to an attachment; and that the issuance of, or an application for, a subpoena shall not be considered due diligence, in cases where the law authorizes the issuance of an attachment. (Paschal’s Dig., Art. 2908, 2909.)</p> <p>Where such facts are stated as show that, owing to the great distance, no use of diligence could have secured the attendance of the witness, it dispenses with the necessity of an attachment.</p> <p>Where the accused applied for a continuance, and swore to the material facts which the witnesses would state, upon which the district attorney admitted that the witnesses would swear to the facts as stated, but refused to admit that such facts were true, reserving to himself the privilege to disprove the statement, or to discredit the witnesses, it was error to force the accused into trial.</p> <p>The third division of Art. 518 of the Code of Criminal Procedure declares that it shall be sufficient, upon the first applicatiofi for continuance, to state' the facts which are expected to be proved by the witnesses, and it must appear to the court that they are material. But there is no provision that the district attorney may admit that the witnesses would so swear, unless he also admit that the facts are true. (Paschal’s Dig., Art. 2987, Note 736.)</p> <p>The accused has the constitutional right to have the witness present. (Paschal’s Dig., p. 48, l 8.)</p> <p>The rule as to the confessions of. the accused is governed by Art. 662 of the Code of Criminal Procedure. (Paschal’s Dig., Art. 3127, Note 761.)</p> <p>Where the accused stated in his application for continuance that his witnesses would swear that lie bought the horse which he was accused of stealing, his statement of thus having the horse might he used as a confession against him, if it be proved tha