Mitchell v. State

Citations

• 1 Tex. Ct. App. 194

Syllabus

<p>1. OoKTOTJAircE.—Being indicted for murder, accused moved for a continuance on account of the absence of two witnesses by whom he expected to prove that in the night preceding the homicide they saw the accused at “ a great distance ” from the scene of the killing, and in such a state of drunkenness as to disable him from walking without help, and thus physically incapacitated to such a degree as to render it improbable, if not impossible, that he could have committed the deed; and, further, that two escaped convicts were in the neighborhood of the homicide, just prior to its perpetration, and for some time previous, but were never seen there subsequent thereto. Held, that these allegations were too indefinite. The place and distance should have been stated with such certainty as would have enabled the court to judge of their materiality; and the allegations respecting the escaped convicts were too vague to have any significance.</p> <p>3. Same.—The application further stated that the testimony taken before the examining court was not in court, and that neither accused nor his counsel had had an opportunity to examine it. Held, insufficient; reason why the testimony was necessary to the accused should have been shown; as, for example, to supply the testimony of a deceased witness, by authority of the act of 1866. Gen. Laws of 1866, p. 160.</p> <p>•8. Murder.—Though an indictment charged that the killing was with express malice aforethought, a conviction under it will not be disturbed because the proof showed, not only such malice, but also that the killing was done in the perpetration of burglary or robbery.</p>