Offense, unlawfully driving a motor vehicle on a public highway while intoxicated; penalty, one year in the penitentiary.
A former appeal of this case will be found reported in 299 S.W., p. 402.
The State's testimony is sufficient to show that appellant on the date alleged in the indictment drove an automobile on a public highway in Polk County while intoxicated. Appellant offered no testimony.
It is alleged in the motion for new trial that after appellant had announced ready for trial and after a jury had been impaneled, his counsel withdrew from the trial and that the Court did not advise him of his right to the benefit of the suspended sentence law and that he was forced to try his case without the benefit of counsel. Upon a hearing of this motion, the Court overruled same and this is the only question properly presented for review. It appears that appellant went to trial and after the jury was impaneled and after appellant had pleaded not guilty to the indictment, court adjourned until the next morning. Appellant was brought into court at three-thirty o'clock the next day. Counsel who had represented him the day before failed to appear, whereupon he accorded appellant a few minutes to secure other counsel and he attempted to do so but *Page 391 failed. Appellant failed to ask for any postponement or continuance in order to secure counsel. If he had any defense to the charge, same is not set up by him or his counsel in the motion for new trial filed after his conviction. He had already pleaded not guilty to the indictment and was in jeopardy when the transactions about which he complains occurred and the Court was without power to discharge the jury against his consent. If he were willing for the jury to be discharged, no showing is made of same. He apparently had counsel available until after the trial began but no plea for suspended sentence was filed. Without going into too much detail, the record as a whole suggests that it was appellant's fault that his counsel withdrew from the case. There is certainly no testimony that he was deprived of counsel by the action of the State or by some outside influence over which he had no control. Abandonment of a defendant's case by his counsel has been held no cause for a new trial. Giles v. State, 68 Tex.Crim. Rep.. See also Holden v. State, 89 Tex.Crim. Rep..
Under the facts above recited the trial court properly proceeded with the trial of appellant and there was no error in his action in overruling appellant's motion for new trial. For general collation of authorities on the subject, see Vernon's C. C. P., Art. 753, notes 4, 5 and 6.
The evidence being sufficient and no errors appearing in the record, the judgment is 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.
ON MOTION FOR REHEARING.