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: 346
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346 AUSTIN v. THE STATE. [Term of
Opinion of the Court.
October 15th, the defendant asked a continuance, the application
being as follows:
"Thle State of Texas, And now comes the defendant and
4 v. moves the court to grant him a contin"
Dick Austin. uance in the above entitled cause, for
"that he says he cannot go safely to trial at this term of the
court for the want of the testimony of Sarah Alston, who re"sides
in Grimes county, and whose testimony is material to his
"defense. Affiant states that he has used due diligence in
"procuring the attendance of said witness, by causing the is"suance
and service of a subpoena in and' upon said witness;
" that she is absent not with consent or procurement of defend"ant.
Affiant expects to prove by the absent witness, that he
"was not at the house of Robert Smith at the time the offense
"was committed, that lie was with the absent witness, and fur"ther,
that at the time the offense is charged to have been
(" committed, he was under the age of thirteen years. Affiant
( further states that he knows of no other source from which
"said testimony can be procured; and that this application is
' not made for delay, but that justice may be done."
The application for continuance was overruled; the judge
stating, in the bill of exceptions, the application for contin"
uance shows no diligence."
The jury found defendant guilty, and fixed the punishment
at two years in the penitentiary. Judgment and sentence accordingly,
and defendant appealed.
T. Earl Preston, for appellant.
N. G. Kittrell, for State.
DIVINE, J. The appellant was convicted at the October
term, 1874, of the offense of theft from a house, and his punishment
assessed at two years in the penitentiary.
The motion to quash the indictment, on the ground that it
charged no offense known to the law, that it contained no sufficient
allegations that the personal property was taken, stolen
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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/m1/354/: accessed June 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .