Mullin v. State (24 S.W.2d 423, 1930)

MARTIN, J.

Offense, assault with intent to murder; penalty, two years in the penitentiary.

Appellant was the proprietor of a restaurant. The injured party was his former employee, who claimed that appellant owed him, and that, in a difficulty ensuing between the two, when he attempted to make collection, he was stabbed three times by appellant. Appellant’s version of the matter, without detailing same, entitled him, if believed, to an acquittal. He offered to corroborate his version^ by witnesses who were alleged to be absent, and the court’s action in forcing him to trial^ without these witnesses and in overruling h}s motion for new trial is the only question presented by the record which we deem worthy of discussion.

When the case was called on April 4, 1929, appellant presented his first application for a continuance or postponement. The case was postponed until the 29th day of April, 1929, at which time appellent presented what he denominates his “Eirst Amended Eirst Application for a Continuance.” Though appellant calls this his first application for a continuance, it was in fact a subsequent application, under the authorities. Griffith v. State, 62 Tex. Cr. R. 642, 138 S. W. 1016; Bowen v. State, 65 Tex. Cr. R. 46, 143 S. W. 187.

The application recites that W. D. McGuire, who resides in Panhandle, Carson county, Tex., and Paul Stanton, who resides in Borger, Hutchinson county, and Elmer Stretch, who resides in Borger, Hutchinson county, were absent; that appellant “caused to be issued a subpoena on or about the 1st day of April, A. D. 1929,” for the witness W. D. McGuire, and that he caused another subpoena to be issued to Carson county and another to Potter county on the 10th day of April, 1929, and that he caused a subpoena to be issued