Opinion
No. 23113.
Delivered May 2, 1945.
1. — Intoxicated Driver — Evidence.
In prosecution for driving a motor vehicle while intoxicated, evidence was sufficient to sustain conviction.
2. — Continuance — Evidence of Absent Witness.
Whether or not defendant, seeking continuance, had used diligence in attempting to secure evidence of absent witness was matter for determination of trial court under the circumstances of the case.
3. — Same.
Where defendant sought a continuance for the purpose of securing the attendance of a witness who had permanently removed from the county and who admittedly had not established another place of residence, and whose whereabouts were unknown, and where there was no representation that defendant would be able to have the evidence of the witness at a subsequent term of court, the action of the trial court in overruling defendant's motion for continuance was justified.
Appeal from County Court of Taylor County. Hon. Wiley Caffey, Judge.
Appeal from conviction for driving a motor vehicle while intoxicated; penalty, confinement in county jail for thirty days.
Affirmed.
The opinion states the case.
Letcher D. King, of Abilene, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
The appeal is from a conviction for driving while intoxicated, with a sentence of thirty days in the county jail.
The appellant had a collision with a taxi cab in Alilene on July 29, 1944. H. E. Sanderson, the owner of the taxi cab company, was called as a witness and testified that he went to the scene of the accident, talked with the appellant, and observed his conduct. It was his opinion that the accused was intoxicated. An officer who was called to the scene gave like testimony. The evidence sufficiently supports the jury's verdict.
We find one bill of exception in the record complaining of the action of the court in overruling appellant's second motion for continuance. By it the appellant sought a continuance for the purpose of securing the attendance of a witness who had permanently removed from the county and who admittedly had not established another place of residence. His whereabouts was unknown. There was no representation that he would be able to have the evidence of the witness at a subsequent term of court. Whether or not he used diligence in securing the evidence of the absent witness was a matter for the determination of the trial court under the circumstances of the case. The action of the trial court in overruling the motion for continuance was justified under the circumstances.
We find no irregularities in the trial of the case and, accordingly, the judgment of the trial court is affirmed.