McCline v. State

White, Presiding Judge.

This is an appeal from a judgment assessing the death penalty in the lower court. There is but a single question in the voluminous record calling for a revision by us, and that is as to the action of the court in overruling defendant’s motion for a new trial.

It is shown that the homicide was committed on the night of October 7, 1887; that defendant was arrested immediately, and was conveyed to the county jail the next day, where he has been confined ever since; that the indictment against him was presented and filed on the tenth day of December. By the affidavit of the district attorney, controverting the motion for new trial, it is stated that two of the counsel who represented defendant upon the final trial, represented him on the twelfth day of December, and set the cause for trial to take place on the eleventh day of January, 1888. On the seventh day of January a copy of the indictment was served upon the defendant, and on the ninth, process by subpoena and attachment was sued out by the counsel representing him on the trial for his witnesses.- The process went into the hands of a deputy sheriff on the tenth, who started immediately to execute it, and who makes affidavit that he went about fourteen miles on the way to where the witnesses resided, and on account of snow, sleet and rain he was taken with a chill, and could go no further; “that he believes, if he had not been taken sick and it had not been for high water, he could have served the witnesses, as he certainly could have gotten to where they lived.” He returned, with his process not executed, on the twelfth. But on the eleventh the case had been called for trial, and defendant’s application for continuance was overruled. On the evening of that day (the eleventh) defendant again sent out another deputy sheriff with attachments for his witnesses, and this officer became water bound in a few miles of where the witnesses lived, and so telegraphed back to the sheriff on the thirteenth. He says that “he believes, had it not been for the high water, he could have gotten the said witnesses to Corsicana by the morning of the fourteenth.” After the State had closed its testimony, which, we presume from the date of the filing of the court’s charge, was on the thirteenth, defendant moved the court to postpone the trial until he could get his witnesses. This motion the court overruled. Defendant introduced no witnesses except the officers of the court, and they testified only as to the process which had been placed in their hands for him.

How, the defendant’s motion for a new trial set forth, amongst other matters, these facts with regard to the failure to procure the service and attendance of his witnesses, for whose absence he had moved to continue, and again presented his mption to continue for the consideration of the court on his motion for new trial. In support of his motion he also produced the affidavits of three of the several witnesses, who each deposed substantially that they were close to the defendant and deceased when the difficulty occurred; that deceased said, “ Let me to him (meaning Ben McCline, defendant); God d—n him; I will do the dirty work,” and with that remark put his hand in his hip pocket and advanced on McCline, and that McCline retreated a few steps and fired. They each swear they would have attended the trial as witnesses had they been summoned. Controverting the motion for a new trial in so far as the motion for continuance was concerned, the district attorney showed want of proper diligence on the part of defendant in his statement that, after defendant’s attorneys had set the case for trial, near a month had elapsed before process was sued out for these witnesses; that it was only sued out two days before the trial was called, and that after setting the case, he had, by using proper diligence, secured the attendance of the State’s witnesses, and they might have done the same as to defendants witnesses.

The diligence was perhaps insufficient as applied to the application for continuance, when made for a continuance, and the learned judge was correct in overruling the continuance for want of diligence.

Should such insufficiency of diligence have prevailed over the showing made for a new trial? When an application for continuance has been overruled, the statute provides that “if it appears upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted.” (Code Crim. Proc., art 560. subdiv. 6.) An application for continuance may be defective and invalid for want of some one or more of the statutory requirements, but may be of great weight notwithstanding upon the motion for a new trial; and especially so when the defect was want of diligence only. (Schultz v. The State, 20 Texas Ct. App., 315; see also Strickland v. The State, 13 Texas Ct. App., 364; Beatty v. The State, 16 Texas Ct. App., 421; Jackson v. The State, 23 Texas Ct. App., 183.) On the motion for new trial the principal question, in so far as the continuance is involved, is the materiality and probable truth of the absent testimony.

Now in the case before us there can be no question of materiality of the proposed evidence. Let us see as to its probability of truth. Three absent witnesses have sworn to the same facts in their affidavits, and whilst they are contradicted by the testimony of all the State’s witnesses, yet those State witnesses testify that those absent witnesses were present on the occasion of the homicide, and they are located by some of the witnesses in situations with reference to the parties which gave them as good opportunity to see and testify to what did occur as any of the parties who were present. Their testimony would certainly produce a strong conflict of evidence, to say the least of it, and, upon which side a jury would determine it, it is impossible for us to conjecture. Under the peculiar features of the case, we are of the opinion the learned judge should have granted defendant’s motion for new trial; and for error in overruling it the judgment is reversed and the cause remanded.

Opinion delivered March 14, 1888.

jReversed and remanded.