Wooldridge v. State

Citations

• 13 Tex. Ct. App. 443
• 1883 Tex. Crim. App. LEXIS 28

Syllabus

<p>1. Continuance—Practice.—The rule now is that even an application for a first continuance is addressed to the sound discretion of the trial court, and is not a matter of right.</p> <p>2. Same—Practice in this Court.—In revising the refusal of a continuance asked because of absent witnesses, the evidence adduced upon the trial is considered by this court in order to determine whether the desired testimony was probably true, as well as whether it was material if true; and its materiality must not only be shown, but the probability of its truth must appear, before this court can hold that the court below abused the discretion with which it is invested.</p> <p>3. Same—Practice.—See the opinion in extenso for circumstances under which a continuance was properly refused because: 1, the application shows a total lack of diligence; 2, because the application shows it to have been within the power of the accused to produce from a present source the proof expected to be made by absent witnesses; and 3, because in view of the evidence adduced the absent testimony did not appear probably true.</p> <p>4. Same—Charge of the Court.—Where the main fact in issue was supported by direct and positive testimony, and the circumstantial evidence adduced was consistent with and only corroborative of such positive testimony, the court properly refused an instruction upon circumstantial evidence embodying the rule in Webster’s ease,</p> <p>o. Verdict—Judgment.—1The well defined English word “fist” can, under no possible circumstances, be held idem sonans with the equally well defined English word “first,” and hence a verdict in a murder case which reads, “We the jury find the defendant guilty of murder in the ‘fist’ degree,” etc., is insufficient and illegal, and will not support a judgment of conviction. See the opinion in extenso on the subject.</p> <p>6. Same.—Article 705 of the Code of Criminal Procedure, defining the requisite of verdicts in criminal cases, requires: 1, that the ver