Opinion
No. 23157.
Delivered June 13, 1945. Rehearing Denied (Without Written Opinion) October 10, 1945.
Continuance — Absence of Witness.
Overruling defendant's application for continuance on ground that there was no such person as the absent witness for whom continuance was asked, but that he was a fictitious person, was not an abuse of trial court's discretion.
Appeal from County Court of Smith County. Hon. R. P. Power, Judge.
Appeal from conviction for driving an automobile while intoxicated; penalty, fine of $50.00 and thirty days in jail.
Affirmed.
The opinion states the case.
Alex P. Pope, of Tyler, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Conviction is for driving an automobile upon a public highway in Smith County while appellant was intoxicated, punishment assessed at a fine of $50.00 and thirty days in jail.
We have no statement of facts in the record. The only bill of exception complains because the trial court denied appellant a continuance. It is practically impossible to appraise the merits of a complaint based upon the refusal of a continuance where the facts are not before us. However, in this instance the State under the sworn statement of the County Attorney resisted the continuance on the ground that there was no such person as the absent witness for whom continuance was asked, but that he was a fictitious person. The court heard evidence upon the question, which evidence is brought forward. The trial court can not be charged with abusing his discretion in overruling appellant's application.
The judgment is affirmed.