Hackett v. State

Citations

• 13 Tex. Ct. App. 406
• 1883 Tex. Crim. App. LEXIS 23

Syllabus

<p>1. Practice—Continuance.—Complaint of the action of the trial court in refusing a continuance cannot be heard when it appears that the absent witness was present in court before the conclusion of the evidence.</p> <p>2. Same—Evidence.—In order to avoid a postponement of the trial, an agreement was entered into between the State and the defendant authorizing the latter to read in evidence the testimony of the absent witness, as set forth in his application for a continuance. Held, that such agreement did not preclude the State from introducing the absent witness, if accessible before the conclusion of the evidence.</p> <p>3. Same—Charge op the Court.—-The rule laid down in Shard's case (43 Texas, 88) is “that’ an admission that a witness, on account of whose absence a continuance is asked, would swear, if present, as stated in the affidavit for continuance, will not defeat the application.” Such rule applies only where the defendant is legally entitled to a continuance; and hence, the defendant in thi,s case was not injured by a charge which instructed the jury, in substance, that the written statement contained in the motion for continuance should be received, and given the same weight, and no more, as if the witness had been on the stand.</p> <p>4. Same.—The court, in a trial for murder, instructed the jury that it was for them to determine the facts from the evidence before them, “ and, applying the facts thus ascertained to the law as above given you, it will be your duty to deduce the guilt or innocence of the defendant.” Held, erroneous, inasmuch as the jury is required to believe the defendant innocent in order to acquit, and because repugnant to the rule which requires a verdict of not guilty, unless the State establishes the guilt of the defendant beyond a reasonable doubt. See the opinion in extenso for the question discussed.</p> <p>5. Same.—In charging the jury, it is the duty of the court to instruct on every phase of case made by the evidence.</p> <p