Opinion
No. 20176.
Delivered February 15, 1939.
1. — Continuance — Discretion.
Ordinarily the granting or refusal of an application for a continuance is addressed to the sound discretion of the trial court, and, unless it is made to appear that the trial court abused his discretion, reviewing court would not be authorized to disturb his action.
2. — Statement of Facts — Question and Answer Form.
A statement of facts in question and answer form could not be considered by reviewing court on appeal.
3. — Intoxicated Driver — Statement of Facts.
Conviction for driving an automobile on a public highway while drunk would be affirmed as against contention of error on the part of the trial court in overruling defendant's motion for a continuance based on the absence of witnesses, in absence of a statement of facts without which reviewing court was unable to determine whether trial court abused his discretion.
Appeal from District Court of Childress County. Hon. A. S. Moss, Judge.
Appeal from conviction for driving an automobile on a public highway while drunk; penalty, confinement in county jail for five days and fine of $50.00.
Affirmed.
The opinion states the case.
McClintock Robertson, of Childress, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is driving an automobile on a public highway while drunk. The punishment assessed is confinement in the county jail for a period of five days and a fine of $50.00.
Appellant complains of the court's action in overruling his motion for a continuance based on the absence of G. L. Mask and Lester Simms, by whom he expected to prove that both were present at the time and place of the collision. That G. L. Mask removed appellant from his car and had him sent to the hospital. That he, Mask, did not smell the odor of whisky on appellant's breath. By Simms, he expected to prove and alleged that he would have proved, if present, that Simms was with appellant all during the day. That appellant at no time drank any intoxicating liquor and was not under the influence thereof at the time of the alleged offense.
It appears that the witness, Mask, was served with process in Cook County on the 19th day of April, 1938. That on the 27th day of May, appellant's attorney was notified by Mask that he would not attend the trial unless sufficient money were forwarded to him to defray the expenses of the trip. No effort was made by appellant to forward any money to the witness, nor did he apply for an attachment for said witness although the trial did not begin until the 13th day of June.
It appears that Simms was served with process on the 12th day of January, 1938. That he left the state and went to Louisiana and was in said state at the time of the trial. This witness was beyond the jurisdiction of the court. Moreover, the record fails to show that appellant notified the witness of the setting of his case for trial.
The state controverted the application on the ground that appellant had failed to use proper diligence to secure the testimony of the absent witness.
Ordinarily the granting or refusal of an application for a continuance is addressed to the sound discretion of the trial court, and unless it is made to appear that the court abused his discretion in that respect, this court would not be authorized to disturb his action. In the absence of a statement of facts we are unable to determine whether the court abused his discretion.
In his motion for a new trial, appellant failed to attach an affidavit from the witness, Simms, showing what his testimony would have been had he been in attendance upon the court. Consequently, in the absence of such an affidavit, and a statement of facts, we cannot say that the court abused his discretion. See Davis v. State, 133 Tex.Crim. Rep.; Johnson v. State, 78 S.W.2d , 965; Wiley v. State, 36 S.W.2d , 495.
The statement of facts is in question and answer form and cannot be considered by this court. See Art. 760 C. C. P.; Lopez v. State, 119 S.W.2d , 1039, and the many authorities there cited.
No error appearing in the record, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.