Opinion
No. 24229.
January 26, 1949.
1. — Continuance — Motion For — Necessary Allegations.
Under Art. 543, Sec. 4, C. C. P., it is mandatory that in order for a motion for continuance to be sufficient it must allege that "the witness is not absent by the procurement or consent of defendant."
2. — Bills of Exception — Insufficient When.
Bills of exception, complaining of argument of state's counsel, which go no further than to set out the argument complained of and appellant's objection thereto, and set forth no facts showing the argument to be improper are insufficient.
3. — Election — Between Counts — Not Required When.
Where indictment for murder contains two counts, one charging death was caused by shooting and the other count charging death was caused by cutting and stabbing, the state was not required to elect between counts where the evidence fully supported each count.
Murder. Appeal from the district court of Wheeler County; penalty, confinement in the penitentiary for twelve years.
Hon. Lewis M. Goodrich, Judge Presiding.
Affirmed.
R. L. Templeton, Wellington, for appellant.
Ernest S. Goens, State's Attorney, Austin, for the state.
Murder is the offense; the punishment, twelve years in the penitentiary.
That appellant killed deceased by shooting him with a gun and cutting and stabbing with a knife is not disputed.
The killing was the result of a dispute arising out of a game of cards.
The evidence raised self-defense from actual attack, as also threats. These issues were pertinently submitted to the jury.
Two bills of exception appear, complaining, respectively, of the overruling of a first and second application for a continuance.
The state challenges consideration of these bills because the applications were insufficient, of and within themselves, and because of the absence of an allegation therein that the witnesses were "not absent by the procurement or consent of the defendant."
Under Art. 543, Sec. 4, C. C. P., it is mandatory that in order for a motion for continuance to be sufficient it must allege that "the witness is not absent by the procurement or consent of the defendant."
For the reason stated, no error appears in the overruling of said motion.
Bills of exception appear complaining of argument of state's counsel. The bills go no further than to set out the argument complained of and appellant's objection thereto. No facts are set forth in the bill showing the argument was not proper. Nothing is presented for review by such a bill of exception.
Complaint is made of the trial court's refusal to require the state to elect upon which count in the indictment a conviction was sought. The counts varied only in the allegation as to the means employed to accomplish the murder — one charging that it was by shooting with a gun, while the other charged it was committed by cutting and stabbing with a knife. The evidence supported each count. No election was therefore required. Bumry v. State, 198 S.W.2d 887.
The remaining bill of exception is in question and answer form, with no certificate by the trial court for the necessity therefor. Such a bill of exception is not subject to be considered.
The judgment is affirmed.
Opinion approved by the Court.