1. Continuance, Second Application for. — A second application for a continuance for absent testimony is properly overruled where it appears either that the diligence is insufficient or that the proposed absent testimony is probably untrue.
2. Admission of Testimony after Case is Closed. — After having examined several witnesses, the prosecuting attorney announced that the State rested its case; whereupon the defendant declined to introduce any testimony. The prosecuting attorney was then, over objection of defendant, allowed to introduce other witnesses in behalf of the State. Held, that the testimony was permissible under provision of article 661, Code of Criminal Procedure, which provides, that "the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice."
3. Evidence — Harmless Error. — On the trial the prosecuting officer proposed to prove by witnesses certain statements made by defendant when he testified as a witness in this cause before an examining court, to which defendant objected, on the ground that his testimony on said examining trial was reduced to writing, and that said written statement was the best evidence, which objection was overruled by the court. Held, that if error be conceded, it was harmless, in view of the fact that the defendant had himself twice again testified to the same fact, one of the occasions being as a witness in this case.
DAVIDSON, JUDGE.
Appellant was indicted for and convicted of receiving stolen property from Santiago Tijerino. When the cause was called for trial, appellant applied for and was refused a second continance for the testimony of one Benavides. This witness was expected to testify that he sold the horses to defendant, and executed to him therefor a bill of sale.
1. We do not think the diligence to secure this attendance was sufficient, nor the testimony probably true. The evidence of the witness Croucher renders it reasonably certain that one Santiago Tijerino executed the bill of sale under the name of the alleged absent witness; and by two witnesses positively that said Tijerino placed the horses in defendant's pasture, and on the same day disappeared, and after an absence of two days returned. It is also shown that the defendant came to the pasture on the same day, and shortly after Tijerino's return; that the horses were then placed in a pen, and that defendant, in the presence and with the assistance of Tijerino, noted in a book the brands on the horses. It is further testified, by the witness Caronado, that defendant told Tijerino if he informed Pedro about the stock he would not buy any more stock from him; that he did not want Pedro to know about the trade. Santiago replied that he had not told Pedro. This conversation occurred in the pasture, just after their return from the pen where the horses were. Defendant denied any knowledge of Tijerino, and testified on the trial that he had never seen him until some time subsequent to the transactions detailed, and had never had any dealings with him.
2. After several witnesses had testified, the prosecution rested its case, and the defendant declined to offer any testimony; whereupon the district attorney was permitted to introduce other witnesses. This was objected to by defendant, on the ground that the State could not reopen its case, nor introduce additional testimony, and should be confined to evidence in rebuttal. These objections are not tenable, for the statute provides, that "the court shall allow testimony to be introduced at any time before the argument of the cause is concluded, if it appear that it is necessary to a due administration of justice." Code Crim. Proc., art. 661; Nalley v. The State, 28 Texas Ct. App. 387[ 28 Tex. Crim. 387]; Hendricks v. The State, 28 Texas Ct. App. 416[ 28 Tex. Crim. 416]; Farris v. The State, 26 Texas Ct. App. 105[ 26 Tex. Crim. 105]; Testard v. The State, 26 Texas Ct. App. 260[ 26 Tex. Crim. 260]; Willson's Crim. Stats., secs. 2311, 2312.
3. While testifying on his examining trial defendant denied any knowledge of Santiago Tijerino. The State, on the trial of this cause, proved this statement of defendant, over his objection that said testimony had been reduced to writing and was the best evidence, and because a predicate had not been laid for its introduction. If it be conceded that he was correct, still we do not think it reversible error, because it was shown, without objection, that he again testified to the same fact on the trial of Tijerino. He also testified on the trial of this case that he had never seen said Tijerino until during the month of September, subsequent to his arrest.
The remaining questions have been considered, but we find no merit in them.
The judgment is affirmed.
Affirmed.
Judges all present and concurring