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: 389
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1875.] ANDERSON v. THE STATE. 389
Statement of the case.
R. ANDERSON V. THE STATE.
1. CONTINUANCE. This court will not regard a statement made in a motion
for new trial in reference to some other alleged proceeding in the
case, which the record does not verify as being true, as where the transcript
fails to show that any action was had by the court on a motion for
continuance. A motion for new trial which alleges error in overruling
the application will not be regarded in the absence of a bill of
exceptions, showing that the court did act upon and overrule the application.
2. OATH OF JURY. A recitation in the judgment-entry in a criminal cause,
that the jury was " sworn well and truly to try the case," is not construed
to mean that the jury was sworn in that form, but as equivalent
to saying that the jury was sworn; the words " to try the case," are
construed to indicate nothing more than the case in which the jury was
sworn, and not the form of the oath.
APPEAL from DeWitt. Tried below before the Hon. D. D
Anderson was indicted for an assault with intent to murder
one Newman. Incorporated in the record is an application for
continuance, based on the absence of a material witness, at that
time confined in the Galveston jail. The facts constituting the
materiality of his testimony are fully stated, and also that the
affiant had been unable to procure the necessary process to
secure his testimony, by reason of his own confinement, in jail.
The transcript contains no evidence that this application was
ever acted on by the court, nor is there any statement anywhere
in the record that a writ of habeas corpus ad testificandum
for the witness in jail in Galveston, had at any time been
Anderson was found guilty, and his punishment assessed at
two years in the penitentiary. There is nothing observed in
the facts in evidence, nor in the charge (which is lengthy) that
would seem to require their insertion here.
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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/m1/397/: accessed June 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .