Opinion
No. 12521.
Delivered May 8, 1929.
Murder — Continuance — For Witness Under Indictment for Same Offense — Properly Denied.
Where appellant complains of being denied a continuance on account of an absent witness, and his bill complaining of the matter is qualified by the court with the statement that the absent witness was under indictment for the same offense, and if present could not be used by appellant as a witness, no error is shown in the refusal of the continuance and in the absence of a statement of facts such bill could not be appraised, even though not so qualified. See C. C. P., Art. 711, P. C. Art. 82.
Appeal from the District Court of Motley County. Tried below before the Hon. Isaac O. Newton, Judge.
Appeal from a conviction of murder, penalty 35 years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is murder; punishment fixed at confinement in the penitentiary for a period of thirty-five years.
The evidence developed upon the trial is not before this court.
Complaint is made of the refusal of the court to continue the case upon the motion of the appellant. The court explained his refusal with the statement that the witness because of whose absence the application was sought was under indictment for the same offense as the appellant and was therefore disqualified to give testimony in behalf of the appellant. One charged with the same offense as the accused on trial is not a competent witness in behalf of the accused. See C. C. P., 1925, Art. 711; P. C., 1925, Art. 82. It may be added, however, that in the absence of a statement showing the facts that were introduced upon the trial, this court would be unable to appraise the merits of the motion for a continuance.
The judgment is affirmed.
Affirmed.