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: 348
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348 AUSTIN V. THE STATE. [Term of
Opinion of the Court.
"United States, of this State, or of any other public or private
" corporation, or association, or of any individual, and of what'
ever material it may be composed," and a dwelling-house is
4 any house where any person habitually sleeps." The articles
referred to embrace the only definitions in the Code of the
word house, or the only classification of the structures known
under the general term of houses. The accused was not indicted
for theft from a dwelling-house; the charge was theft
from a house, which, in the language of Article 728, means
" any building erected for public or private use, whatever the
" material may be of which it is constructed," and a further
description was not required.
The assignment, that the court erred in overruling defendant's
motion for a continuance is shown by the affidavit, motion,
and bill of exceptions, to be well taken.
The affidavit was for a first continuance. It stated all that is
required on such an application by Article 2987, Paschal's
Digest. The bill of exceptions taken to the refusal of the
court to grant the continuance, contains over the signature of
the judge, the following words: The application for contin"
uance shows no diligence."
The application shows that the evidence sought was important
for the defense; that the witness by whom he could
prove the facts alleged by him was a resident of Grimes
county; that a subpoena had been issued on his application,
and served on the witness. This we believe, in this case, to
have been sufficient, or due diligence. An attachment for a
witness residing in the county could not have issued until the
witness had failed to obey a subpoena. (Paschal's Digest,
Article 2907.) The amendment to Article 435 of the Penal
Code, passed May 27, 1873, does not affect the provisions of
Article 436, and the amendments to Articles 379 and 380 of
the Code of Procedure, contained in 2 Paschal's Digest, Articles
6601 and 6602, relate solely to enforcing the attendance
of witnesses before the grand juries.
The affidavit was a compliance with the law, on the.first ap
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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/m1/356/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .