Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 252
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252 DINKENS v. THE STATE. [Term of
Opinion of the Court.
It is only necessary to examine the third and fourth grounds
of the motion for a new trial, complaining of error in overruling
defendant's application for continuance and for admitting
evidence of his confessions on the trial.
It appears that an attachment was issued for defendant's
witness, residing in Walker county, on the same day the indictment
was filed, being the 13th day of October, and that it
was placed in the hands of an officer for service. The application
was made on the 16th of October, and being by the court
overruled the defendant was required to proceed to trial. It
seems from a statement made by the judge, and which accompanies
the bill of exception, that the defendant had been in
jail since the 15th of August preceding the trial, having been
committed in default of bail by a magistrate on the charge
contained in the indictment, and had retained counsel before
the term of the court commenced. The court held that the
defendant had not used due diligence, that he should not have
waited until an indictment was presented before preparation
for trial. No question was made as to the materiality of the
evidence, or that the application did not comply with the
requirements of the statute in other respects. The name and
residence of the witnesses, the diligence used, the facts expected
to be proved are stated, and the further statement is
made, that the witness was not absent by the procurement or
consent of the defendant, and that the application was not
made for delay. Nothing further could be required of the
party on the first application for continuance. The statute
makes provision for subsequent applications, and adds other
requisites which are not required on the first application. If
the showing for this purpose is not sufficient, it must be for
some other reasons than such as we have mentioned. The
suggestion that the accused should have provided for the
attendance of the witness before the indictment was presented,
is not, as is believed, borne out by the Code. Thle
observation of the judge, however true it may be that justice
may sometimes be delayed, must yield to the plain and poss
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/260/: accessed September 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .