Carter v. State

Whitfield, C.

Appellant made application for a continuance in due form of law on account of the absence of Jim Strickland, a material witness, who was very ill at his home in the town where the court was held. The court overruled the application, and then, over the earnest protest of the defendant, adjourned the whole court, parties, sheriff, clerk, district attorney, etc., to the home of the witness Jim Strickland, and there tendered the witness to counsel for appellant for examination. To all this the counsel for appellant earnestly objected, and declined to examine the witness, stating that the courthouse was the place provided by law for the trial of cases.

Bishop, in his New Criminal Procedure (volume 1, section 1195) announces that this cannot be done, citing Adams v. State, 19 Tex. App. 1. That case we have carefully examined. It is identical in its facts with the case at bar, and on the point involved the court said: “We *345 know of no authority which would compel the defendant to go with the court and jury from the courthouse to where the absent witness was at the time, that her testimony might be taken. Under the law the trial must be had at the courthouse at the county site of the county. It was there, and there only, that the case, must be heard and determined. If the defendant could be required to go one-half a mile with the court and jury in order to have the benefit of the testimony of an absent witness, he could be required to go one, two, or five miles. We cannot sanction such a practice. All the proceedings in the trial should be conducted at the courthouse, the place designated by law for the trial of causes. If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. But that is not the question before us. In this case the defendant’s application for a continuance was refused; one of the grounds of the refusal being that he declined to accept the proposition of the court to go with the jury to the place where the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance.”

Per Curiam:. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded.

Reversed and remanded.