Theft of hogs is the offense; penalty fixed at confinement in the penitentiary for a period of two years.
By the testimony of eye-witnesses who saw the appellant and three other persons in the act of stealing the hogs and by the testimony of an accomplice, and under the circumstances developed from the owner of the animals, the appellant's connection with the theft of four hogs was shown. The hogs were tolled and driven to a point near a certain lake and there killed. Their entrails were placed in a fire from which they were taken by the eye-witnesses and the owner of the animals a short time after they were killed.
The defense of alibi was presented by the witnesses in behalf of the appellant. He did not testify, but by the evidence adduced from other witnesses, presented the theory that at the time the offense was committed, the appellant was hunting at another place some distance from that at which the offense occurred.
The date of the offense was fixed by the State's testimony as the 27th day of February, 1929. Several witnesses gave testimony tending to show that the appellant, in company with Snodgrass, Ponder and others, was hunting birds near the home of his father in the latter part of the month of February, 1929. The testimony on the subject is difficult to analyze on appeal for the reason that the witnesses gave names of places such as Cookeville, Omaha and Zealith Lake, but failed to give such information as would enable this court to determine the relative locality of the various places mentioned. However, it seems to be the contention of the appellant that his presence in the hunting party would be about ten miles from the place where the hogs were killed. His presence, however, at the place where the hogs were killed was affirmed by several of the State's witnesses, and the conflict of evidence upon that issue was settled by the jury who, in the court's charge, were instructed upon the law of alibi.
In his application for a continuance because of the absence of Clifton Snodgrass and Johnnie Ponder the appellant avers that he made application for process for each of the witnesses mentioned; that process for Snodgrass was applied for on the 24th of June, 1929, and for Ponder on the 16th of that month. In the application there is no averment that either of the witnesses had been served with process, nor is it stated therein that the appellant caused process to be put in the hands of the sheriff or that it reached the sheriff. It is stated that by the sheriff's return it appeared that *Page 675 Snodgrass was not served and was in Arkansas, but the date of the return is not stated in the application. The object of the testimony of both witnesses was to show that at the time the offense was alleged to have been committed (about the 27th day of February), the appellant, in company with the witnesses named, was a member of a hunting party about ten miles from the place where the hogs were killed. It was the duty of the appellant, not only to make application for process, but to see to it that it was issued and placed in the hands of the sheriff or some other officer for execution. It was likewise his duty, after process was returned, to exercise diligence in getting out a new process, if necessary, to secure the attendance of the witnesses. In both of these particulars the application for a continuance is faulty. Deckard's case, 58 Tex.Crim. R., and numerous cases collated in Branch's Ann. Tex. P. C., Sec. 315, support the text as follows:
"Defendant should show what became of his process, in whose hands it was placed and when, and whether it was served, and when it was returned."
See Texas Jurisprudence, Vol. 4, p. 186, sec. 135; Morse v. State, 85 Tex.Crim. R., 210 S.W. 965.
In the court's qualification of the bill complaining of the refusal to grant a continuance, it appears that process for Snodgrass was returned on the 29th of June, showing no service on him and stating that he was in Arkansas. It was shown in the application and in the court's qualification that Snodgrass was a resident of Morris County, Texas, and that both Snodgrass and Ponder were close friends of the accused.
In the application it is averred that Ponder was sick. No proof of that fact was made on the hearing of the motion for new trial; nor is it shown in any way that he had been served with process. After the process for Snodgrass was returned on the 29th of June, diligence would have required that the appellant make some effort to secure his attendance at the trial. The case was set for trial on the 11th of July and postponed until the 15th of that month. Between the 29th of June and the 15th of July no effort is shown to have been made to procure additional process or to secure the attendance of the witness Snodgrass. The necessity that the diligence used be set out in the motion for a continuance and that it affirmatively appear that diligence was used to secure the attendance of the witnesses has often been stated in the opinions of this court. Many of them are collated in Branch's Ann. Tex. P. C., p. 186, sec. 314. *Page 676 See Boyd v. State, 57 Tex.Crim. R.; Walker v. State, 13 Tex. Cr. App. 647. For other collation of authorities, see Morse v. State, 85 Tex.Crim. R., 210 S.W. 965; also Shepherd v. State,10 S.W.2d 730.
The action of the court in overruling the motion for a continuance was fully justified by the absence of diligence to secure the attendance of the witnesses.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.