Scott v. State

Decided April 7, 1915

Court of Criminal Appeals of Texas · decided 1915-04-07

1. Criminal Law <§=>595 — Continuance — Absence of Witness — Materiality of Testimony. A defendant charged with crime is not entitled to a continuance to procure the testimony of a witness, who would not in any way contradict the evidence of the state. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. <&=>595J 2. Criminal Law <@=>784 — Instructions — Necessity—Circumstantial Evidence. In a prosecution for larceny of a number of turkeys, where there was evidence positively identifying two of the turkeys sold by the defendant as those belonging to the prosecuting witness, it is not necessary to 'charge on circumstantial evidence. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960: Dec. Dig. <§=>784.] 3. Criminal Law <§=>1038 — Request eor Charges—Necessity. In a prosecution for a misdemeanor, the defendant cannot complain that the court’s charge did not sufficiently present an issue, where he made no written request for a charge on that issue. [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <§=>1038.] 4. Criminal Law <§=>730 — Misconduct oe Prosecutor — Argument — Cure by Instruction. In a prosecution for larceny of turkeys, where, on objection by the defendant to the argument of the prosecuting attorney, the court told the jury that it was improper for the county attorney to refer to the defendant as “Turkey Tom” and as a “Gobbler,” and they should not consider it, and instructed the attorney to use only the defendant’s true name, the conviction will be affirmed. [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <§=730.] 5. Criminal Law <§=^1187—Appeal—Invited Error—Conversation. Where accused stated at the time that he had no objection to the whole of a conversation being elicited, and himself elicited a part of the conversation, he cannot complain on appeal that thereafter the witness was permitted to detail the whole conversation which was necessary to enable the jury to understand the matter and determine the weight to be given to-the part elicited by defendant [Ed. Note.—Eor other cases, see Criminal Law, Cent Dig. §§ 3007--3010; Dec. Dig. 1137.] On Motion for Rehearing. 6. Criminal Law <®=v1133—Appeal—Motion to Rehear — Matters Considered — Affidavits. On a motion for rehearing, the Court of Criminal Appeals cannot consider affidavits presented to it in the first instance, showing that defendant had a good defense to the prosecution, especially where no reasons were given why the witnesses were not all to testify at the trial. [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <@=^1138.]

Cited by 1 later decisions — most recently January 1918

1 state decisions

Relies on 71 Tex. Crim. 94 - Pye v. State

Good law ✅— No negative treatment on recordhow we know

Affirmed, and motion for rehearing overruled · Decided 1915-04-07

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¶1On Motion for Rehearing.

¶2[6] Appellant has filed a motion for rehearing herein, the sole ground being “that he has a good defense to said ease, as shown by the affidavits hereto attached,” and then attaches some half dozen affidavits to facts which would have been admissible on the trial, but no reason is stated why the witnesses were not called when the case was tried. Certainly some of the testimony was as well known to appellant before as since the trial; for instance, that he had purchased a certain turkey'from a witness named. However, this court cannot consider such af*1056fidavits filed for tlie first time in this court. It is not a trial court but an appellate court. We pass on the record as made in the trial ■court, and cannot consider other evidence. Pye v. State, 71 Tex. Cr. 94, 154 S. W. 222.

¶3The motion for rehearing is overruled.