Rainey v. State

Appellant renews complaint of the refusal of his applications for continuance. Having same in mind, we have carefully sifted the testimony supporting the proposition that the continuance should have been granted. It was sought because of the absence of appellant's wife. She had come with him to court and, according to appellant's contention, had been taken ill after arriving at the county seat. Several physicians, who examined her, testified as to her condition. It seems without dispute that the disease from which she suffered was chronic. All said physicians testified that the condition of nervousness and illness resulting from the prospect of being used as a witness in her husband's case, would likely recur at any future time. She had been suffering from said disease for several years. No effort had been made to take her deposition or perpetuate her testimony. We gather from the testimony of the physicians that one element in the condition of the wife when examined by them, grew out of the fact of having made an automobile trip. On this point the sister of appellant's wife was used as a witness for the state. She said that the wife of appellant came to witness' house on the morning of the trial; that she was up and walking around and was not complaining of anything more than usual until noon; that up until the time appellant's wife heard the case was going to trial she *Page 374 was walking around the house, but when she heard that it was going to trial she went off and laid down. Giving consideration to all this testimony, we are satisfied the learned trial judge did not abuse his discretion in refusing this continuance. The qualifications put on appellant's bills of exception Nos. 2 and 3 leave no question of the fact that the argument of the State's Attorney complained of therein, was in reply to argument used by appellant's counsel. There is nothing in the proposition that the state proved that a party who was with appellant was intoxicated.

The motion for rehearing will be overruled.

Overruled.