Appellant was convicted in the District Court of Foard County of the offense of murder, and his punishment assessed at a term of twenty years in the penitentiary.
For a statement of facts in this case see the opinion in cause No. 10307, this day handed down by this court, same being styled Hugh Davis v. State.
Appellant, by his bill of exceptions No. 2, complains of the action of the trial court in refusing to grant a continuance. We are unable to agree with appellant in his contention that the case should be continued for the reason that the bill itself shows that immediately after the appellant was indicted, to-wit, on the 16th day of February, A.D. 1926, he made application for a subpoena to issue for the witnesses, which subpoena was on the 17th day of February in due course of mail forwarded to the Sheriff of Tarrant County, Texas. The bill further shows that the subpoenas for the witnesses had been returned into court with the following notation of return thereon:
"The following named witnesses not summoned for the reason set opposite their names: Bill McCash, J. C. McCash, John McCash. They are not at 1105 Throckmorton Street, in Fort Worth. There is no garage at this number. None of the within named names appear in either the city or telephone directory, and that is our only source of information.
(Signed) "CARL SMITH, Sheriff, Tarrant County. "By M. T. Chambers, Deputy."
There is nothing in the bill showing the day of the return and the record is silent as to any additional process being issued or *Page 317 any further efforts made to procure the attendance of said witnesses.
The appellant's bill of exceptions No. 3 complains of the action of the trial court in not admitting a certified copy of a judgment of conviction against deceased showing that he was convicted of robbery in Ford County, Kansas. We are unable to agree with appellant in his contention. For a discussion of this question see the opinion in cause No. 10307, Hugh Davis v. State, same being a companion case with the instant case, this day handed down.
We have examined the other questions raised by appellant and find that they present no error.
The facts amply support the verdict of the jury. There being no errors 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.