Lott v. State

41 Tex. 121

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Reeves, Associate Justice.

This is an indictment against Serena Lott and Nancy Lott for disturbing religious worship. It appears from the statement of facts that the case was tried first on the lltli day of February, 1874, when a verdict of guilty was rendered against both defendants, assessing a fine of five dollars against them. On their motion a new trial was granted, and the case was set for trial again on the next day, being 12th of February, counsel for defendants stating that the witnesses had gone home upon the return of the verdict of the jury, but that he would try and get them back in time for the trial. When the court met on the morning of the 12th, and the case was called, the witnesses were not present. The defendants’ attorney stated that he had gone to the witnesses and told them to be in court at that time. But it appears that one of the defendants had informed the witnesses that they would not be needed during the term. Defendants’ attorney then asked that the case should be postponed until evening, wdien he could and would have the witnesses in court. This was refused by the court, and they applied for a continuance. The application was overruled, defendants excepted, and the case proceeded to trial.

It is shown by the application for continuance that the absent witnesses had been in attendance on the previous day when the case was tried, and that they had been duly summoned as witnesses. The materiality of the testimony is shown, that the witnesses resided near town, and that their attendance could be procured in three or four hours. Under the circumstances, we think the trial should have been postponed for a few hours, as requested, if not continued for the term. The case had been tried the day before, and the witnesses had gone to their homes. The parties seem to have acted in ignorance of the fact that the case would be called for trial again at that term, when the witnesses were informed that they were not required to remain longer; and though the code makes provision, in some cases, that the cause may be again tried at the same or another term, the parties should have been allowed time to procure the attendance of their witnesses, under the circumstances shown in this case. On these grounds the judgment will be reversed, without considering at this time the other objections presented by the record.

Bbvebsed and kemahdbd.