Myers v. State

Citations

• 7 Tex. Ct. App. 640

Syllabus

<p>1. Continuance. —Even before the adoption of the Revised Codes an application for a third or subsequent continuance was addressed to the judicial discretion of the trial court, and its action thereon was not revised on appeal unless an abuse of that discretion was made manifest.</p> <p>2. Same. — A severance to enable one defendant to obtain the testimony of another, by a prior trial and acquittal of the latter, is possible only when they are jointly indicted; and the purpose of such a severance is frustrated when a conviction is the result of the prior trial. An appeal from the conviction does not entitle the untried defendant to a continuance until the appeal shall be decided, and, by possibility, the appellant ultimately acquitted.</p> <p>8. Change of Venue. — The propriety of hearing testimony for and against applications for change of venue on account of prejudice is now well settled. The rulings on this subject in Rothschild v. The State, ante, p. 519, referred to with approval. Whether a witness examined on this inquiry has an opinion upon the guilt or innocence of the defendant is irrelevant and immaterial.</p> <p>4. Petit Jurors. — Sect. 26 of the jury law of 1876 authorizes the challenge of a petit juror who has “served for one week in the District Court within six months preceding, or in the County Court within three months preceding.” Held, that the word preceding has reference to a prior term of the court, and that previous jury-service during the pending term is not cause for challenge.</p> <p>5. Same—Practice.—The overruling of a good challenge for cause is not material error when it does not affirmatively appear that the ruling forced an objectionable juror upon the defendant.</p> <p>6. Charse oe the Court. — Though, as held in McMillan v. The State, ante, p. 142, a charge is erroneous which requires the jury to convict unless they And the defendant to be innocent, yet the context of the instruction is to be considered, with a view to determine wh