Pinckord v. State

Citations

• 13 Tex. Ct. App. 468
• 1883 Tex. Crim. App. LEXIS 31

Syllabus

<p>1. Practice—Continuance—New Trial.—See the statement of the case for facts set up in an overruled application for a continuance, which, taken in connection with the facts proved at the trial, and being material, and not deficient in probability of truth, entitled the defendant to a, new trial.</p> <p>2. Same.—Whether or not an application for a continuance is sufficient in law, is the question for the court to determine when the application is heard, and an erroneous refusal of the same at the time is not rectified by the subsequent discovery that the desired evidence is cumulative.</p> <p>3. Continuance.—It is not now, nor has it ever been, the law that an application for a first continuance shall aver that the desired testimony cannot be obtained from any other source known to the defendant. Such averment is essential only in subsequent applications.</p> <p>4. Evidence—Alibi.—It is no reason for its exclusion that the desired evidence is cumulative proof of the defense of alibi. See the opinion in ex-tenso for evidence excluded on this ground, but held competent and of first importance to the defendant.</p> <p>5. Same—Practice.—In a prosecution wherein the wife was the alleged injured party, it was proper, as tending to establish motive, to permit the State to prove that the wife had instituted a suit for divorce, and that the same was pending at the alleged time of the offense; but it was error to permit the allegations of her petition in the divorce suit to be read to the jury as evidence, and especially so without explanation as to how far and for what purpose they were to be considered. More especially was it error to admit in evidence the judgment or decree of divorce, when it appeared to have been rendered subsequent to the alleged commission of the offense.</p> <p>6. Same—Case Stated.—A witness was permitted to testify that, at a time when the defendant was not present, he, the witness, directed Ms wife not to lend his gun to the defendant, as he apprehe