Lillard v. State

Citations

• 17 Tex. Ct. App. 114
• 1884 Tex. Crim. App. LEXIS 179

Syllabus

<p>1. Continuance — New Trial — Constitutional Law.— It is contended by the appellant in this case that the statute conferring upon the trial judge discretionary power to grant or refuse continuances and new trials is unconstitutional and void, for the reasons, 1, that it deprives the citizen of compulsory process for his witnesses; 3, that it deprives the citizen of the right of trial by jury; and, 3, that the Legislature had no power to regulate continuances and new trials. Held, that these positions are not tenable. See this case in illustration, and note the statement of the case for evidence set out in an application for a continuance held, not to be probably true, and for that reason insufficient to authorize the award of a new trial.</p> <p>2. Constitutional Law — Excessive Punishment.— Confinement in the penitentiary for the crime of horse theft is neither an excessive, cruel or unusual punishment, nor does it become so by reason of the'provision of the Code of Criminal Procedure (article 800) providing for successive imprisonments upon different convictions; wherefore the position that the said article of the Code of Criminal Procedure is unconstitutional, in that it conflicts with section 13 of the Bill of Rights, is not maintainable.</p> <p>3, Theft — Evidence.— See the statement of the case for evidence which, being introduced to establish the identity of the defendant as one of the parties to the theft, and his concurrence in the fraudulent intent of his confederate, and not for the purpose of proving the taking, was properly admitted.</p> <p>4. Same—Practice—Charge of the Court.— Omission to instruct the jury upon a principle of law properly arising upon the case is not, in the absence of exception or requested special charge, revisable error, unless, upon the whole case, it appears that such omission probably prejudiced the rights of the accused.</p>