Davis v. State

Court of Criminal Appeals of Texas

Davis v. State

102 S.W. 1122, 51 Tex. Crim. 341, 1907 Tex. Crim. App. LEXIS 134

CourtCourt of Criminal Appeals of Texas

DecidedApril 17, 1907

DocketNo. 3500.

StatusPublished

This text of 102 S.W. 1122 (Davis 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

Davis v. State, 102 S.W. 1122, 51 Tex. Crim. 341, 1907 Tex. Crim. App. LEXIS 134 (Tex. 1907).

Pincite

Opinion

*342 BROOKS, Judge.

This conviction was for assault with intent to murder, the punishment assessed being two years confinement in the penitentiary. Appellant filed motion in this case for postponement, which was sworn to by one of appellant’s counsel and not by the appellant. The statute requires a motion for postponement and continuance to be sworn to by appellant. Furthermore, the testimony sought from said absent witness is not material in the light of this record, since the uncontradicted record before us shows that after a colloquy and quarrel between prosecuting witness and appellant, appellant went out of the saloon and returned in a few minutes with a pistol, stating at the time she left that she would return in a few moments. The record shows that prosecuting witness had a knife, but there is no semblance of testimony that prosecuting witness had attempted to use a knife, therefore, the fact that one was found in the saloon after the difficulty, would not be material testimony, even if we could consider the motion for postponement.

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

Affirmed.

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*342 BROOKS, Judge.

This conviction was for assault with intent to murder, the punishment assessed being two years confinement in the penitentiary. Appellant filed motion in this case for postponement, which was sworn to by one of appellant’s counsel and not by the appellant. The statute requires a motion for postponement and continuance to be sworn to by appellant. Furthermore, the testimony sought from said absent witness is not material in the light of this record, since the uncontradicted record before us shows that after a colloquy and quarrel between prosecuting witness and appellant, appellant went out of the saloon and returned in a few minutes with a pistol, stating at the time she left that she would return in a few moments. The record shows that prosecuting witness had a knife, but there is no semblance of testimony that prosecuting witness had attempted to use a knife, therefore, the fact that one was found in the saloon after the difficulty, would not be material testimony, even if we could consider the motion for postponement.

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

Affirmed.

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Bluebook (online)

102 S.W. 1122, 51 Tex. Crim. 341, 1907 Tex. Crim. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texcrimapp-1907.