Hays v. State

Appellant urges only what he conceives to be the error of our opinion in upholding the overruling of his motion for new trial, based on the refusal of a continuance. The trial court has judicial discretion, under all the authorities, in this matter, and unless we are led to believe from the record that he has abused same, — his judgment should not be overturned. In approving appellant's bill of exception presenting this complaint, the court certifies that in his opinion the result of the trial would not have been affected had appellant's wife been present and testified. It is apparent from the application for continuance that his wife had been present and testified in a companion case. We have carefully gone over the statement of facts in the light of appellant's motion for rehearing, and the affidavit of appellant's wife attached to the motion for new trial. The soundness of the conclusion announced in our former opinion, — in which it is stated that most of the matters set up as expected from the wife were admitted to be true by the state upon the trial, and that the remainder of her testimony appears to be largely, if not entirely, conclusions — is apparent. It is somewhat difficult to believe that a jury would have accepted as true, against the positive testimony of a number of disinterested witnesses, the wife's statement that she knew he was not guilty of manufacturing intoxicating liquor, when *Page 176 such conclusion was based on the fact that they had sickness in their family and her husband was at home helping take care of the children. No doctor testified to any illness in appellant's family, nor were any of the neighbors called to corroborate any such proposition. Appellant might have been at home every night, as his wife says he was, and still have been engaged in running a still in a nearby county some twenty miles away, through the activity of another or others, as appears to be the case here. We adhere to the former opinion.

The motion for rehearing will be overruled.

Overruled.