129 S.W. 622
CROMWELL 
v. 
STATE.
Court of Criminal Appeals of Texas.
June 8, 1910.
        Appeal from District Court, Freestone County: H. B. Daviss, Judge.
Page 623
        O. D. Cromwell was convicted of attempted arson, and he appeals. Affirmed.
        Bell & Fryer, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
        McCORD, J.
        The appellant was indicted and convicted in the court below of the offense of willfully and maliciously 
attempting to set fire to and burn a certain house belonging to one Hamp Jones. His trial resulted in a 
conviction, with a penalty of four years. When the case was called for trial the appellant made an 
application for a continuance for the want of the testimony of one Henry Cook, whose residence was 
alleged to be in Freestone county, and by whom the defendant expected to prove that he was present on 
the night the house was discovered to be on fire, and assisted the defendant in getting on top of the 
house for the purpose of extinguishing the fire, and that the witness knows that the defendant did try to 
extinguish the fire. It seems that a bill of indictment was returned against the defendant on the 15th day 
of September, 1909, and the trial occurred at the succeeding term of the district court, which was held in 
February, 1910. At the first term of the court the case was continued by consent. This continuance will, 
therefore, be treated as a second application for a continuance. The only diligence disclosed by the motion 
is the issuance of a subpœna for this witness on the 14th day of February, 1910. This subpœna was 
returned "not executed; witness not found." The case was called for trial on the 22d day of February, 
1910, and as a second application for continuance it is defective in omitting to state that the testimony 
cannot be procured from any other source known to the affiant, and it failed to state that the defendant 
has reasonable expectation of procuring the same at the next term of the court, but should we treat this 
as a first application for a continuance, the applicant shows a want of diligence. A bill of indictment was 
returned six months before the application was made for process. The witness resided in the county where 
the offense is alleged to have been committed, yet no effort was made to find out the whereabouts of the 
witness, or to secure his attendance at court until a few days before the case was called for trial. The 
application simply states that the witness was not served. The court below in signing the bill of exception 
to the refusal to grant the continuance states that, when the defendant's application for continuance was 
presented to the court, the court announced to defendant's counsel that if he wanted said witnesses the 
court would have additional process issued for them, and would exhaust all means at the command of the 
court to get them, but counsel for defendant did not avail himself of the court's offer, and did not ask for 
the additional process tendered by the court. To our minds the application shows a want of diligence. It 
does not comply with the requirements laid down by the statute for a second application for continuance 
on the part of defendant, and appellant is not in a position to complain in this court because even after his 
application for continuance had been overruled the court below tendered him all the process needful to 
procure the attendance of the witness. Appellant failed to avail himself of the offer on the part of the 
court. We, therefore, hold that the court below did not err in refusing to grant a continuance.
        Counsel complain that the court erred in paragraph 11 of his charge which reads as follows: "The 
defendant is presumed by law to be innocent, until his guilt is established by legal and competent 
evidence to your satisfaction beyond a reasonable ____. This reasonable doubt extends to every phase of 
the case; and if you have a reasonable ____ of the guilt of the defendant, you will give him the benefit of 
such doubt, and acquit him." It is insisted that the omission of the word "doubt" following "reasonable" 
renders the charge of the court unintelligible and ambiguous, and that the same was practically a refusal 
on the part of the court below to give in charge to the jury the doctrine of reasonable doubt that must be 
given in all criminal cases. We have carefully considered this question, and have come to the conclusion 
that there is no merit in appellant's contention. If a word should be omitted that changed the whole 
meaning of the sentence it might be just ground of complaint, but where the mind would necessarily 
supply a word in connection with the whole sentence it cannot be considered such an error as ought to 
receive consideration. Now, when the court directed the jury that the defendant is presumed innocent 
until his guilt is established by legal and competent evidence beyond a reasonable ____ and then this is 
followed with the statement "this reasonable doubt extends to every phase of the case," naturally the 
mind would supply the word "doubt," and it could not be regarded as of serious moment. Questions 
similar to this have been before this court in several cases. In the case of Green v. State, reported in 52 
Tex. Cr. R. 44, 105 S. W. 205, was where the court, in directing the jury that if under all the facts and 
circumstances in evidence, "in this case would commonly have produced a degree of anger, rage, 
resentment or terror in a person of ordinary temper sufficient to render the ____ incapable of cool 
reflection, then such attack would be adequate cause," and in that case it was insisted that the omission 
of the word "mind" rendered the charge unintelligible. This court, speaking through Judge Brooks, says: 
"We do not
Page 624
think the jury could possibly have been misled by this charge. Evidently, in reading the charge, the 
learned trial court read the word "mind" in the blank complained of, and whether he did or did not, the 
mind of any juror would instinctively, in the light of the context, insert the word "mind," knowing that it 
was the sheerest inadvertence that omitted the word. The case of Hester v. State, 55 Tex. Cr. R. 374, 116 
S. W. 1150, was a case where "doubt" was omitted from the charge as read. The charge as given was as 
follows: "You are instructed that the laws of our state presume a man to be innocent until his guilt is 
established beyond a reasonable by legal evidence." This court, speaking through Judge Ramsey, states: 
"We think the omission is such a one as in the nature of things would have been supplied by any jury of 
ordinary intelligence, and in view of the statement of the court that he in fact read the charge as if the 
word `doubt' had been in it, we do not think appellant was injured by this omission." See, also, Leonard v. 
State, 56 Tex. Cr. R. 84, 119 S. W. 98. It is true that in the above case the court mentions that in view of 
the fact that the court in reading the charge used the word "doubt," as one reason the court held the 
contention without merit. However, we are of opinion that whether the record discloses that the court did 
use the word "doubt" or not, in reading his charge, it is not necessary for the record to disclose that fact, 
for it would be presumed that a jury of ordinary intelligence would supply the word. The context and the 
sentence shows that it had a place there and that no other word could supply that place that could be 
given a different meaning. We therefore hold that the error, if error at all, is not of sufficient importance to 
require a reversal of the case. We deem it unnecessary to set out the facts in the opinion. It will be 
sufficient to say that while the case was circumstantial, yet there was sufficient testimony to justify the 
verdict of the jury.
        Finding no error in the record, the judgment is affirmed.