The offense is robbery; the punishment, five years in the State penitentiary.
That the appellant and Kenneth Yates assaulted and robbed the injured party, W. R. Davis, of $17.50 is shown by his (Davis') testimony. Such was sufficient to authorize the jury's conclusion of guilt.
The only bills of exception appearing in this record complains of the action of the trial court in refusing to grant appellant's application for a continuance or postponement of the case because of the absence of certain witnesses named therein, whose testimony, it was alleged, was material to the defendant. The application did not contain an averment that the witnesses named therein were "not absent by the procurement or consent of the defendant" as required under the provisions of Art. 543, Sec. 4, Vernon's Annot. C. C. P. The absence of such an allegation renders the application fatally defective. Clarich v. State, 129 S.W.2d 291, 137 Tex.Crim. R.; Owens v. State, 149 S.W.2d 964, 141 Tex.Crim. R.; and authorities cited under Note 29 of Art. 543, Vernon's Annot. C. C. P. *Page 630
The judgment of the trial court is 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.