Bernson v. State

Court of Criminal Appeals of Texas

Bernson v. State

294 S.W. 217, 106 Tex. Crim. 646, 1926 Tex. Crim. App. LEXIS 686

CourtCourt of Criminal Appeals of Texas

DecidedMarch 17, 1926

DocketNo. 9988.

StatusPublished

This text of 294 S.W. 217 (Bernson 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

Bernson v. State, 294 S.W. 217, 106 Tex. Crim. 646, 1926 Tex. Crim. App. LEXIS 686 (Tex. 1926).

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Opinions

BERRY, Judge.

The offense is the unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.

In his application for a continuance the appellant alleges that he was indicted on the 29th day of September and a copy of the indictment served on him on the 30th day of the same month. That on the 2nd day of October thereafter he made application for process for the attendance of the witness Marvin Milner and a subpoena was issued to Hall County for said witness on said date and on the 5th day of October said subpoena was returned into court endorsed “not found.” The trial took place on the 9th day of October, A. D. 1925. It may be conceded that the testimony of the absent witness was material to the appellant’s defense. We think, however, that appellant is wholly lacking in diligence in the matter. After the subpoena was returned into court on the 5th day of October no further process was asked for and no other effort, so far as this record shows, made to procure the attendance of this witness. Appellant states in his motion for a continuance:

“That this defendant had been informed by the said Milner that his people lived somewhere in Titus County, Texas, and this defendant believes that if this cause were continued he could ascertain from said people or otherwise where the said Marvin Milner now is, whether in Hall County or elsewhere, so that the attendance of the said Marvin Milner as a witness could later be secured on the trial of this cause, that is, at the next term of court.”

No reason is assigned as to why the appellant permitted the four days elapsing between the time of the return of the subpoena in the case and the date of the trial to pass without making any effort to ascertain the whereabouts of the absent witness. The record is entirely silent as to any showing that if appellant had used due diligence he would not have found out the whereabouts of the absent witness. In the absence of any effort to make use of the days intervening between the return of the subpoena and the date of the trial or the end of the trial to get the testimony we think that he did not show such diligence as would authorize this court to declare that in overruling the application for a continuance and the motion for a new trial based thereon, the court abused its discretion. On the contrary, we think this case is clearly within the operation of the rule which requires diligence in the issuance of additional process upon learning that *648 the first issued will not result in securing the attendance. Hornsby v. State, 91 Tex. Crim. Rep. 174, and cases there cited.

By bill of exception No. 2, appellant complains at the argument of the District Attorney. We have carefully considered this bill and believe it was without merit. It was certainly not of such prejudicial nature as to justify a reversal of the case in view of the fact that the appellant was given the lowest penalty under a state of facts that were entirely sufficient to justify the jury in convicting him.

Finding no error in the record, the judgment is in all things affirmed.

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.

The offense is the unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.

In his application for a continuance the appellant alleges that he was indicted on the 29th day of September and a copy of the indictment served on him on the 30th day of the same month. That on the 2nd day of October thereafter he made application for process for the attendance of the witness Marvin Milner and a subpoena was issued to Hall County for said witness on said date and on the 5th day of October said subpoena was returned into court endorsed “not found.” The trial took place on the 9th day of October, A. D. 1925. It may be conceded that the testimony of the absent witness was material to the appellant’s defense. We think, however, that appellant is wholly lacking in diligence in the matter. After the subpoena was returned into court on the 5th day of October no further process was asked for and no other effort, so far as this record shows, made to procure the attendance of this witness. Appellant states in his motion for a continuance:

“That this defendant had been informed by the said Milner that his people lived somewhere in Titus County, Texas, and this defendant believes that if this cause were continued he could ascertain from said people or otherwise where the said Marvin Milner now is, whether in Hall County or elsewhere, so that the attendance of the said Marvin Milner as a witness could later be secured on the trial of this cause, that is, at the next term of court.”

No reason is assigned as to why the appellant permitted the four days elapsing between the time of the return of the subpoena in the case and the date of the trial to pass without making any effort to ascertain the whereabouts of the absent witness. The record is entirely silent as to any showing that if appellant had used due diligence he would not have found out the whereabouts of the absent witness. In the absence of any effort to make use of the days intervening between the return of the subpoena and the date of the trial or the end of the trial to get the testimony we think that he did not show such diligence as would authorize this court to declare that in overruling the application for a continuance and the motion for a new trial based thereon, the court abused its discretion. On the contrary, we think this case is clearly within the operation of the rule which requires diligence in the issuance of additional process upon learning that *648 the first issued will not result in securing the attendance. Hornsby v. State, 91 Tex. Crim. Rep. 174, and cases there cited.

By bill of exception No. 2, appellant complains at the argument of the District Attorney. We have carefully considered this bill and believe it was without merit. It was certainly not of such prejudicial nature as to justify a reversal of the case in view of the fact that the appellant was given the lowest penalty under a state of facts that were entirely sufficient to justify the jury in convicting him.

Finding no error in the record, the judgment is in all things affirmed.

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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294 S.W. 217, 106 Tex. Crim. 646, 1926 Tex. Crim. App. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernson-v-state-texcrimapp-1926.