Williams v. State

Citations

• 10 Tex. Ct. App. 528

Syllabus

<p>1. Continuance.— Under our present Code the granting or refusal of an application for a continuance, whether the first or a subsequent one, based upon the absence of witnesses, is confided to the discretion of the trial court, and is no longer a matter of right. If, however, after trial and conviction, it appears that the evidence upon which the refused application was based was material, and probably true, a new trial should be granted. See this case for the distinctions between the old and new Codes on this subject.</p> <p>8. Dying Declarations — Case Stated.—■ In a prosecution for murder, a witness stated that he approached the deceased immediately after the fatal shot was given, and asked him “ what is the matter with you?” to which he replied “ Jack Williams shot me.” It was also in proof that the defendant was commonly known by the nickname “ Jack Williams.” After the witness had left the stand the defense moved the court to withdraw this evidence from the jury, upon the ground that it was not alleged that Jack and W. H. Williams, the defendant, were one and the same person. Held, that even if the objection had been interposed at the proper time, it would not have been tenable, as the answer to the question was so clearly interwoven with the transaction, being given after the deceased had sunk down in his death agony, and immediately preceding his death, that it was admissible as part of the res gestee; and held, further, that the evidence showing that Jack and W. H. Williams were names commonly applied to the defendant, it was not necessary that the indictment should allege them to be one, to let in the proof, and therefore there is no variance between the allegata and probata.</p> <p>8. New Trial.— Absence of counsel is no cause for new trial. See the opinion for peculiarity of amotion based on this ground.</p> <p>4 Practice.— Objections to the service of the special venire must be taken at the proper time in the court below, and, to authorize an inspecti