Huebner v. State

Citations

• 3 Tex. Ct. App. 458

Syllabus

<p>1. Continuance. —An application for a continuance on account of the absence of a. witness is insufficient if it fails to set out the facts which the witness is expected to prove. A general allegation that the witness will prove the defendant’s innocence will not suffice.</p> <p>2. Diligence.—It is incumbent on a defendant, as soon as he is arrested, to employ the means provided by law to secure the attendance of his witnesses and prepare for his defense. Neglect and delay are at his own peril.</p> <p>8. New Trial to Obtain Testimony of an Acquitted Go-defendant. —■ Appellant and one R. were jointly indicted for theft, but a severance was had on the application of R., and the appellant, at the instance of the county attorney, was first tried, and was convicted. ThenB. was tried and acquitted. Held, that appellant, having been deprived by law of the benefit of B.’s testimony, was, upon a proper showing of its materiality to his defense, entitled to a new trial to obtain it, notwithstanding he had not, by availing himself of the act of 1874, sought to defer his own trial until after that of B.</p> <p>4. Becord — Jury. —In a felony case the judgment entry stated that a jury of twelve good and lawful men were impaneled, etc., and then proceeded to name the jurors, but set out the names of eleven only, without noting any waiver of a full panel. Held, that this is fatal to the conviction. The recital of the names precludes any presumption that there was a legal panel. 0</p>