Hilly v. State

BERRY, Judge. Appellant was convicted in the District Court of Fannin County for the offense of murder, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years. Appellant complains at the court’s action in refusing to allow him to withdraw his announcement of ready and postpone or continue the case when it developed on the trial that the witness Carl Turrentine had repudiated a statement formerly made by the said witness, which statement was favorable to the appellant, and was prepared on the trial of this case to give testimony damaging to appellant’s defense. Without going into a lengthy discussion of this matter it is sufficient to say that we have carefully considered it and have reached the conclusion that the court’s action with reference thereto was correct. In presenting an application for continuance or postponement, it is incumbent upon the party so doing to show in said application a valid reason why same should be granted and mere general statements are not sufficient to meet this requirement. The appellant in this case merely averred that if he had a reasonable time he could and would procure evidence contradicting the evidence of the witness Turrentine given at the trial of this cause, and that such evidence could be procured among neighbors residing in Fannin County, Texas, at or near Bonham, and that such evidence could be procured if. defendant had time, in Harris County, Texas, from among the associates of defendant; and that if defendant had time and opportunity, he could procure from Harris and Brazoria Counties evidence establishing that said witness has a bad reputation for truth and veracity. We think it without dispute that this showing is wholly insufficient. When an appellant seeks to continue a case for absent witnesses, as a general rule it is incumbent upon him to not only name the witnesses but to show what he expects to prove by each of said witnesses and also to show in said application sufficient facts to warrant the court in concluding that the testimony of the absent witnesses is material to the appellant’s defense. We think none of these requirements were met in this case,' and we overrule appellant’s complaint with reference thereto. By bill of exceptions No. 2, appellant complains at the court’s *439 action in refusing to give his special charge with reference to the suspended sentence. The court gave a correct charge on the subject of suspended sentence and presented in the last section of paragraph eighteen in language equally as favorable as that contained in the special charge, the very question sought to be presented thereby. The complaint made by bill of exception No. 4 to the cross-examination of the character witness is not sufficient to show error. It is permissible for the state to cross-examine a character witness as to what he had heard concerning acts or violations of law or other matters of this character committed by the party for whom he is testifying, and the bill merely showing that it was objected to as irrelevant and immaterial, we cannot hold that the objection should have been sustained. Neither is there merit in appellant’s bill No. 5, which complains of the court’s action in permitting his character witness Jones to be asked if he had heard it discussed by the defendant and others that the defendant had bought a pistol to kill a man with. We think this was relevant and pertinent testimony testing the witness’ knowledge of what the public generally said concerning the reputation of the defendant. By bill of exception No. 9, appellant complains at the court’s action in permitting the state to prove by the witness Turrentine a certain transaction had between the witness and the appellant which transaction showed ill will and technical assault on the witness by the appellant. This testimony was offered on redirect examination by the state after the defendant had asked the witness and proved by him he “had it in” for the defendant, and was testifying as he had in order to get even with him and in order to get revenge upon the defendant. We are disposed to think that the witness had the right to explain the reasons that actuated him in testifying against the defendant. The appellant had shown by this witness that he had enmity and ill will against the defendant and that he sought revenge upon the defendant, and we think that where the witness’ testimony was attacked in this manner, it was proper for him to make an explanation as to his feeling toward the party on trial, but of course, details of extraneous matters should not have been admitted. We are persuaded, however, that this testimony instead of being hurtful to the defendant was probably beneficial to him. If it had any effect one way or the other it certainly had a tendency to convince the jury that the witness was so embittered against the appellant as to be likely to cause him to testify *440 falsely against him, and the testimony of this witness on this matter we think did not put the appellant in a bad light before the jury, but on the contrary, we think that the testimony tended to show defendant’s act as creditable to him under the circumstances detailed. We have carefully examined each of appellant’s bill of exceptions and have reached the conclusion that there is no error shown in any of them. It is therefore, our opinion that the judgment should in all things be 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.