Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twelve years, and he appeals.
Appellant applied for a continuance of the case on account of the absence of a witness and the absence of his leading counsel, J.A. Bullock. The witness was present in court, and so this question is eliminated. The application shows that Bullock was sick. The contesting affidavit of the district attorney shows that his sickness was voluntarily produced by reason of the use of intoxicating liquor, and the court's explanation to the bill shows that the sickness of Bullock was produced by the voluntary use of intoxicating liquors. It also appears from the explanation *Page 17 of the court that appellant had the services of able counsel during the trial of the case, whom he had previously employed. The action of the court overruling the continuance on this ground was not error. Mixon v. State, 36 Tex.Crim. Rep.; Ryan v. State, (Texas Crim. App.) 35 S.W. Rep., 288; Stockholm v. State, 24 Texas Crim. App., 598.
In his motion for new trial, appellant alleged that one R.O. Collier, who was introduced by the State, and testified as a witness, was not sworn, and that this was unknown to his counsel until after the trial. This is supported by the affidavit of R.O. Collier to the effect that he was not sworn, and by his attorney, B.B. Beaird, to the effect that he did not notice Collier was not sworn. There is also appended to the motion the testimony of said Collier. This witness was not present at the time of the homicide, but came to the body several hours after deceased was killed, and he testified to the condition of the body then and finding a knife in the pocket. The testimony of this witness does not appear to us to have been material. He testified that John Messer, Jim Rankin, and Nath. Brown and others were present when he went to the body; but no effort was made by appellant to contradict him by any of these witnesses. Indeed there does not appear to have been any controversy about his testimony. But if there had been, it does not appear, under the decisions of this court, that he would be entitled to a new trial because the witness was not sworn. Goldsmith v. State, 32 Tex. Crim. 112. While the statute requires witnesses to be sworn, yet this is a right that appellant may waive as he can waive any right except the trial by jury when he has entered the plea of not guilty. If he desired the witness sworn, diligence required that he should see to this during the trial. It is too late after verdict to complain. The evidence is sufficient to support the verdict. The judgment is affirmed.
Affirmed.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]