Zumwalt v. State

Winkler, J. The appellants were tried and convicted on a charge, in connection with one Eeuben Zumwalt, of theft of a gelding, the property of one O. W. McBride. It is proposed to notice specially in this opinion but three of the errors complained of in the bills of exception and in the assignment of errors : ■ First, the refusal of the court to grant a continuance ; second, the alleged error of the court in permitting the acts and statements of Eeuben Zumwalt to be introduced as evidence against these appellants and, third, the refusal to grant a new trial. 1. Agreeably to the record, three persons were charged with the theft, to wit, these appellants and Reuben Zumwalt, who was tried separately. All three joined in an affidavit for a continuance, stating that “ they are not safe' in going to trial * * * for the want of testimony material for their just defence,” setting out the names and place of' residence of two witnesses, the diligence used to procure their attendance, what they expect to prove by the witnesses, and showing its materiality, and certain other formal averments. The affidavit, however, fails to state that a continuance is not sought for delay; and it is shown- by a. statement made by the j udge, appended to a bill of exceptions-to the ruling of the court on the application for a continuance, that it was refused solely on the ground of this defect in the affidavit. In this ruling the court did not err. One of the requisites525 for a first continuance by the accused in a criminal case, for the want of a witness, is that he shall state •“ that the application for continuance is not made for delay.” Code Cr. Proc., art. 518 (Pasc. Dig., art. 2987). The application did not come up to the requirements of the Code. Applications for continuances, not based upon the statute, and which do not meet its requirements, are addressed to the discretion of the court to whom they are made, and should be granted or refused according to the circumstances; and the ruling of the court thereon will not be revised on appeal, except in a clear case of abuse of that'discretion. Baldessore v. Stephanes, 27 Texas, 455 ; Nelson v. The State, 1 Texas Ct. App. 41; Jackson v. The State, 4 Texas Ct. App. 292, and authorities there cited. The subsequent action of the appellants did not cure the defect in the first .affidavit. 2. It is urged on the part of the appellants that “ it was gross injustice to the defendants to allow the confessions of Reuben Zumwalt to be placed before the jury,”—on the ground, apparently, that he was under arrest at the time they were made. It is true that, by the provisions of the Texas Code, a •“ confession shall not be used if at the time it was made the defendant was in jail, or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court in accordance with law; or made voluntarily, after having been first cautioned that it may be used against him; or unless, in connection with such confession, he make statement of facts or circumstances that are found to be true, — [for example] such as the- finding of secreted or stolen property,” etc. Still, if, under the above rule, “the confession was freely made, without compulsion or persuasion, they are admissible.” Pasc, Dig., arts. 3126, 3127. [526] We are of opinion the court took a correct view of the law bearing on the subject of these statements of Zumwalt, set out in the explanation to a bill of exceptions taken to the ruling upon the evidence, as follows: “The court permitted said statement because it proved to be true, by leading to where the horses were, though already found by two other persons not of the house-surrounding party, and1 because it had been shown that these co-defendants were seen together in Gonzales County the day the horses disappeared.” 3. With reference to alleged error in refusing a new trial, several of the grounds of the motion have already been considered. As to the charge of the court on the subject of principals or principal offenders, we are of opinion the law of the case, as applicable to the facts proved, was properly given to the jury. Berry v. The State, 4 Texas Ct. App. 499, and authorities there cited; Bybee v. The State, 4 Texas Ct. App. 505. As to the general charge, the question of the guilt or innocence of the accused was fairly submitted to the jury. The charge refused can hardly be said to be applicable to the case as made by the proofs. The several grounds- of error complained of have been carefully considered; and from the whole case as here presented, we find no such error as would warrant a reversal of the judgment or the granting of a new trial. The judgment is affirmed. Affirmed.