1. Continuance — Sufficiency of Application for. — The facts expected to be proved by the absent witness or witnesses must be definitely set out, or an application for continuance will be insufficient.
2. Same — Facts Stated Must be Exculpatory. — Even when absent testimony is set out in an application for continuance, and the same appears to be "material and probably true," unless such facts are exculpatory, or tend to discredit or explain inculpatory facts, the continuance should not be granted. Following McAdams v. The State, 24 Texas Criminal Appeals, 101; Pruitt v. The State, 30 Texas Criminal Appeals, 156.
3. Bills of Exception — Practice on Appeal. — Bills of exception not filed until after the adjournment of the term of the court will not be considered, even though incorporated in the statement of facts properly ordered to be filed after the term.
4. Evidence — Newspaper Reports. — A newspaper report containing a statement of the circumstances attending the commission of the crime is not admissible as evidence.
DAVIDSON, JUDGE.
Appellant was convicted for the robbery of J.J. Osborne. He applied for a continuance for the testimony of Tom Lockett, by whom he expected to prove, "that a little after 2 o'clock on September 3, 1893, he saw defendant and J.J. Osborne on Commerce street, engaged in conversation with each other." This is too general and indefinite to be considered. The facts expected to be proved by the absent witness should have been definitely set out in the application. What bearing did the evidence stated have upon any issue in the case? The robbery occurred at night, after 2 o'clock. Did the conversation occur after 2 o'clock at night, or in the day? What bearing did the mere fact that the conversation occurred between them have upon any issue in the case? Where is the Commerce street alluded to in the application? Was it in Dallas, and was it the Commerce street referred to by the witnesses in the statement of the facts? But, if true, and properly set forth in the application, the evidence could have no applicable exculpatory bearing on the case that we can discover. Even where the absent testimony is "material and probably true, the case should not be continued unless the facts are exculpatory, or tend to discredit or explain the inculpatory facts." McAdams v. The State, 24 Texas Crim. App., 101; Pruitt v. The State, 30 Texas Crim. App., 156. There was no error in this ruling of the court.
The remaining bills of exception, having been filed after adjournment of the term of the court, can not be considered. "The rule is the same where the bill appears only in the statement of facts which is filed and approved after the term, upon a proper order for that purpose." The bills here spoken of were incorporated in the statement of facts, and filed after the end of the term. Lockett v. Schurenberg, 60 Tex. 610; Willis v. Donac, 61 Tex. 588; Tom v. Sayers, 64 Tex. 339; Yoe v. Montgomery, 68 Tex. 338 [ 68 Tex. 338]; Schaub v. Brewing Co., 80 Tex. 634 [ 80 Tex. 634]; Frisby v. The State, 26 Texas Crim. App., 180. The practice in this regard is the same in criminal as in civil causes. Willson's Crim. Stats., secs. 2364, 2366.
One of the bills contained in the statement of facts was reserved to the admission of an article with large headlines, published, in the Dallas Morning News, a daily paper published in the city of Dallas, where the robbery occurred. This article gave a rather extended detailed statement of the circumstances attending the commission of the offense. Why this was offered or admitted as evidence we are unable to discover, and, had the bill been reserved in such manner as to have entitled it to consideration, would have operated to reverse the judgment. But, as presented, we can not consider the bill.
After a careful revision of the testimony, we do not think the contention of appellant well taken that the evidence does not support the conviction.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.