Harris v. State

Citations

• 18 Tex. Ct. App. 287
• 1885 Tex. Crim. App. LEXIS 93

Syllabus

<p>1. Continuance—Practice.—In the sixth subdivision, of article 560, Code of Procedure, it is provided that the truth of the allegations made in every application by a defendant for a continuance, and the merit and sufficiency of the ground relied upon, are addressed to the “sound discretion of the court.” This implies that the action of the court upon the application, even when it is first presented, should not be an arbitrary determination of its merits and sufficiency by the trial court, but the result of a sound discretion, which, of course, in passing upon an application prior to the trial, cannot be affected by the evidence which is afterwards adduced at the trial forced upon the defendant by the refusal of the continuance. But when, after the trial and conviction of the defendant, the court is called by the motion for a new trial to reconsider the grounds assigned in the application for a continuance, the truth, materiality and sufficiency of its allegations are to be considered in connection with the evidence adduced at the trial, and are not to be considered as already predetermined by the refusal of the continuance anterior to the trial, nor to be disposed of by an arbitrary as distinguished from a sound discretion.</p> <p>2. Same — Theft — Kleptomania — Cumulative Proof—New Trial —Case Stated.—In a theft case the defense asked a continuance to obtain the attendance of two witnesses, who, it was alleged, would establish the fact that the defendant, at and prior to the taking of the property, was a kleptomaniac. The application set out the witnesses's opportunity of knowledge of the general fact, and their knowledge of specific facts establishing the general fact. Diligence to obtain the attendance of the witnesses was fully alleged and not controverted, but the application was overruled. At the trial the defense adduced other witnesses, whose testimony tended to establish the same general and particular facts, .but which also showed that the said absent w