The appellant was tried and convicted of theft of one head of cattle, and his punishment assessed at two years in the penitentiary, and from the judgment of the court he prosecutes *Page 283 this appeal. The appellant assigns as error the overruling of his motion for a continuance. Said motion contains two grounds: (1) The absence of defendant's counsel, Lock McDaniel; (2) the absence of the witness Cherry.
As to the first, it appears that what McDaniel did in the case was voluntarily done, without any employment, and if he ever was of counsel for defendant, he had withdrawn from the case. The defendant had counsel to defend him, and the withdrawal of McDaniel does not appear to have prejudiced his rights.
As to the witness Cherry, it is not shown when the attachment for said witness, who is alleged to have resided in Angelina County, was issued, and consequently no diligence was shown; and judging from the judge's qualifications to defendant's bill of exceptions, if said witness would have testified as stated by defendant in the motion, it was not probably true.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.