Long v. State

Citations

• 17 Tex. Ct. App. 128
• 1884 Tex. Crim. App. LEXIS 182

Syllabus

<p>1. Practice — Continuance — Diligence.— The onus is upon the defendant to establish the exercise of diligence in support of his application for a continuance.</p> <p>2. Same—Default of a Witness.—It is understood that a witness refuses to obey a subpoena if he is not in attendance upon the court on the day set apart for taking up the criminal docket, or any day subsequent thereto and before the final disposition of the particular case in which he is a witness.</p> <p>3. Same — Attachment.— When a witness who resides in the county of the prosecution has been duly served with a subpoena to appear and testify in any criminal proceeding, and fails to so appear, the party who summoned him is entitled to have an attachment issued forthwith for such witness.</p> <p>4. Same.— The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments; and when the defendant is relying alone upon the service of a subpoena, his application for a continuance, to be good in point of diligence, should affirmatively show that the witness was in attendance upon the court on the day set apart for taking up the criminal docket, and thereby excuse his failure to sue out an attachment.</p> <p>5. Same “Evidence,—The affidavit or complaint upon which the information in this case was predicated was received as evidence on behalf of the State, over the objection of the defendant. Held, error; that, though an indispensable part of the pleadings, it was in no sense evidence of the facts it charged. See the opinion iñ extenso on the question.</p>