O'Neal v. State

12 S.W.2d 800, 111 Tex. Crim. 315, 1928 Tex. Crim. App. LEXIS 843

• Court: Court of Criminal Appeals of Texas
• Decided: December 19, 1928
• Docket: No. 12103.
• Status: Published

Opinions

HAWKINS, Judge.

Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.

An officer had been watching appellant on the night of the arrest and finally when he started to cross the street towards appellant, he ran, and was pursued by the officer into an alley between some buildings. When the officer called upon appellant to stop, he did so, and the officer saw appellant drop something near his feet. It was later picked up by the officer and found to be a bottle containing whiskey.

Appellant sought a postponement based upon the absence of two witnesses. It is not stated in the application for delay nor in the bill of exception complaining of the Court’s ruling thereon whether the application was a first or a subsequent one. From the contest filed by the State it appears that the case had been continued by appellant at a former term of the Court. In the absence of a showing that the application was the first, it will be presumed to have been a subsequent one. Logan v. State, 40 Tex. Crim. Rep. 85. Other authorities are collated in Branch’s Annotated Texas Penal Code, Sec. 313. Regarded as a subsequent application, it is wholly insufficient, for having omitted the averment that the evidence expected could not be procured from any other source. Art. 544, C. C. P.; Brannan v. State, 1 S. W. (2nd) 279, and authorities cited.

Other bills of exception bring forward objections to the charge of the Court and complaints at the refusal of requested charges. None of the complaints are thought meritorious.

The judgment is affirmed.

Affirmed.