Van Brown v. State

Citations

• 34 Tex. 186

Syllabus

<p>1. In his affidavit for a first'continuance, on account of absent witnesses, the defendant stated, by way of showing diligence, that he had subpcenas issued for the witnesses as soon as the indictment was found, and further that he had placed them in the hands of the sheriff, who had not returned them so as to enable defendant to state whether they had been served or not-; but the affidavit failed to state the date of the subpoenas, or the time when they were placed in the sheriff’s hands. The witnesses lived within the county, and defendant, having been on bail, could have gone after them himself. Reid, that the affidavit did not show the diligence required by the statute. It might be true in every respect, and yet it might also be true that the subpcenas, though issued as soon as the indictment was found, had been withheld from the sheriff until the case was. called fer trial.</p> <p>2. It is to be expected that in applying for a continuance a party will state the facts as strongly as possible in his own favor, and therefore presumption in his behalf cannot be indulged.</p> <p>3. With respect to a first continuance for want of an absent witness, however true it may be in civil causes, and to a certain extent in criminal ones, that if the application complies with the terms of' the statute, the court has no discretion to refuse it; yet this doctrine is not to be understood to deprive the court, in criminal causes, of the exercise of a sound discretion in determining the question of diligence, or in deciding upon the materiality of the facts alleged to be within the knowledge of the absent witness. The intimation to the contrary in Jenkins v. The State, 30 Texas, 444, is obiter dictum, and not recognized as law.</p> <p>4. The usual instruction respecting “ reasonable doubts” is warranted only in eases whore the evidence suggests a doubt; and even in that class of cases, unless the defendant asked the instruction and the court refused it, he has no cause to compla