Swofford v. State

Citations

• 3 Tex. Ct. App. 76

Syllabus

<p>1. Evidence by Deposition. — The Code of this state authorizes a defendant in a criminal case to take the deposition of a witness who resides out of the state. See the opinion for the rules prescribed on this subject.</p> <p>2. Continuance.—When every requirement of the statute has been complied with, a first continuance is a matter of right. Not so, however, in subsequent applications, unless it be affirmatively shown, not only that the process afforded by law has been sued out, but also that it has been served and returned into court. If sued out and not served and returned, the subsequent continuance is a matter for the discretion of the court below, determinable upon its inquiry whether the defendant’s expectation of procuring the testimony is well founded; and the refusal of the continuance will not be revised by this court unless in the very plainest case of abuse of its discretionary power by the court below.</p> <p>3. Same.—Diligence in a second application for a continuance is not shown by the fact that a commission to take a deposition outside the state, but at a place not more than 300 miles distant, had been sued out three months before the trial, but had not been returned. The defendant should not have waited such a length of time without taking further steps to obtain the testimony.</p> <p>4. Special Ventee — Mistake. — One Bible was summoned on a special venire facias, but in the copy served on the accused the name of Biffle, instead of Bible, appeared. The defendants moved the court to set aside the venire, on the ground that they had not been served with a copy of it. Held, that the motion was in effect a challenge to the array, which is maintainable only when the summoning officer acted corruptly and summoned persons prejudiced against the accused.</p> <p>6. Same. — Proper practice in such a case is to set aside the juror misnamed in the copy; and, inasmuch as the record fails to show anything to the contrary, or that the defendants were in anyw