Atwood v. State

Court of Criminal Appeals of Texas

Atwood v. State

277 S.W. 665, 102 Tex. Crim. 122, 1925 Tex. Crim. App. LEXIS 1023

CourtCourt of Criminal Appeals of Texas

DecidedMay 27, 1925

DocketNo. 8974.

StatusPublished

Cited by2 cases

This text of 277 S.W. 665 (Atwood v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atwood v. State, 277 S.W. 665, 102 Tex. Crim. 122, 1925 Tex. Crim. App. LEXIS 1023 (Tex. 1925).

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Opinions

BERRY, Judge.

Appellant was convicted in the District Court of Eastland County for the unlawful possession of liquor for the purpose of sale and his punishment assessed at confinement in the penitentiary for a term of three years.

By bill of exception No. 1, appellant complains of the action of the court in overruling a motion to quash the jury panel. The questions raised in this matter are governed by the principles announced in the case of Hart v. State, this day decided, and of McNeal v. State, decided by this court on May 20, 1925, and under the authority of those cases appellant’s first assignment will be pverruled.

By bill No. 2, appellant complains that the court erred in overruling his first application for continuance. This application is wholly insufficient to show the materiality of the testimony expected to be given by the absent witnesses. It merely states certain facts which appellant expects to prove but wholly fails to embody anything in the motion showing or tending to show wherein said statements would be" material to any issue in the case. It is well settled in this State that the application for a continuance must show on its face the materiality of the absent testimony. See Par. 3, Sec. 311 of Branch’s P. C. for full citation of authorities on this question.

The third bill of exception complains of the court’s refusal to instruct a verdict of not guilty. This charge was properly refused. The evidence in this case is amply sufficient to establish’ the appellant’s guilt.

*124 Appellant contends that the court erred in submitting the theory of principals to the jury. We cannot agree with this contention. The evidence from the State’s standpoint clearly indicated that appellant was acting with another in possessing for sale the liquor in question.

Finding no error in the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

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BERRY, Judge.

Appellant was convicted in the District Court of Eastland County for the unlawful possession of liquor for the purpose of sale and his punishment assessed at confinement in the penitentiary for a term of three years.

By bill of exception No. 1, appellant complains of the action of the court in overruling a motion to quash the jury panel. The questions raised in this matter are governed by the principles announced in the case of Hart v. State, this day decided, and of McNeal v. State, decided by this court on May 20, 1925, and under the authority of those cases appellant’s first assignment will be pverruled.

By bill No. 2, appellant complains that the court erred in overruling his first application for continuance. This application is wholly insufficient to show the materiality of the testimony expected to be given by the absent witnesses. It merely states certain facts which appellant expects to prove but wholly fails to embody anything in the motion showing or tending to show wherein said statements would be" material to any issue in the case. It is well settled in this State that the application for a continuance must show on its face the materiality of the absent testimony. See Par. 3, Sec. 311 of Branch’s P. C. for full citation of authorities on this question.

The third bill of exception complains of the court’s refusal to instruct a verdict of not guilty. This charge was properly refused. The evidence in this case is amply sufficient to establish’ the appellant’s guilt.

*124 Appellant contends that the court erred in submitting the theory of principals to the jury. We cannot agree with this contention. The evidence from the State’s standpoint clearly indicated that appellant was acting with another in possessing for sale the liquor in question.

Finding no error in the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

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Bluebook (online)

277 S.W. 665, 102 Tex. Crim. 122, 1925 Tex. Crim. App. LEXIS 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwood-v-state-texcrimapp-1925.

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