[DOWNLOAD] "Vence Palasota v. State Texas" by Court of Criminal Appeals of Texas " eBook PDF Kindle ePub Free
eBook details
- Title: Vence Palasota v. State Texas
- Author : Court of Criminal Appeals of Texas
- Release Date : January 28, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 56 KB
Description
We find no error in appellants complaint that the court erred in overruling his first motion for continuance based on the absence of the witness Albert Puhlmann. The indictment was presented on November 26, 1968. On March 21, 1969, the case was set for trial on September 8, 1969. The motion for continuance filed on the day of trial did not set forth the facts expected to be proved by such witness nor was there an affidavit of such witness attached thereto. Said motion merely alleged that "facts which this defendant expects to prove by said witness are, in substance, facts which will verify that defendant acted in self defense." It is well established that mere conclusions and general averments are not sufficient for the court to determine their materiality, and the motion for continuance must show on its face the materiality of the absent testimony. See 1 Branchs Ann.P.C., 2d ed., Sec. 333, p. 366. In perfecting his bill of exception to the courts action, appellants counsel attached a letter he had written to the missing witness which expressly reflects counsel had no knowledge as to what facts the witness would testify. Further, a motion for new trial based upon the overruling of a motion for continuance because of the absence of a witness should have the affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for new trial. See 1 Branchs Ann.P.C., 2d ed., Sec. 357 and cases there cited. This was not done in the case at bar.