Jackson v. State

Citations

• 4 Tex. Ct. App. 292

Syllabus

<p>1. Continuance.—Applications for continuance which are not based on the statute, or which do not conform to its requirements, are to be controlled by the judicial discretion of the court to which they are addressed; and the exercise of that discretion will not be revised on appeal unless an abuse of the discretion be apparent.</p> <p>2. Same—Case Stated.—Indicted in April for murder, the accused was arraigned for trial in the succeeding October, when he applied for a first continuance, alleging the absence of a female witness by whom he expected to prove an alibi, but for whom he had obtained no legal process, inasmuch as she had been confined in child-birth during the preceding week, and was still unable to obey process. Held, that this application fails to show diligence, or that the witness was the only one to the alibi, or that her attendance at the next term would be procured, and therefore was not a statutory showing, but one determinable by the judicial discretion of the court below; and that the refusal of the continuance appears to have been a proper exercise of that discretion.</p> <p>3. Special Venire—Jury. — Certain of the persons named in the copy of the venire served on the accused had not been served by the sheriff, and others were not in attendance when the venire was called. The accused declined the proposal of the court to suspend the call and run attachments for such persons, and the panel was filled out of the venire, and, so far as the record shows, without the accused exhausting their challenges. Held, that, under • the circumstances, the irregularities must be considered as waived; and there being nothing to impugn the qualifications or impartiality of the jury, no error to the prejudice of the accused is apparent.</p> <p>4. Accomplice Testimony—Charge of the Court.—In the trial of two out of eight persons jointly indicted for murder, the State used an accomplice as a witness, and the court instructed the jury that his testimony implicating