238 S.W. 224 | Tex. Crim. App. | 1922
Lead Opinion
Appellant was convicted in the Criminal District Court of Harris county, and his punishment fixed at five years in the penitentiary.
The conviction was for forgery. In the charging part of the indictment the instrument alleged to have been forged is called a deed. It is set out in the indictment in haec verba, and shows to be a deed of trust. A motion to quash was addressed to this alleged contradictory recital of the indictment. It was properly overruled. That a written conveyance of land conveys the interest of the grantor for the purpose of securing a debt, would not prevent its being a deed within the definitions. 13 Cyc., p. 519; Lockridge v. McCommon,
The only remaining question is the refusal of appellant's request for a continuance. Two witnesses, Maxie and Blocker, were absent. No diligence is shown. The indictment was returned October 30, 1920, and no subpoenas were issued or applied for until July 1, 1921. This appears to be appellant's first effort to obtain the testimony of said witnesses. Subpoena for Maxie was issued to Harris county, for Blocker to Navarro county. Process for both was returned not *287 served, that for Blocker being returned on July 5th, and that for Maxie on July 8th. No alias process was secured. No reason is stated in the application for failing to further search for Maxie. It is stated that upon the return of said subpoena for Blocker, appellant made diligent inquiry as to his whereabouts. This is but a conclusion. It is further stated that on July 15th appellant located Blocker's mother at Cuney, Texas, and that he expects to learn from her where said witness is. No effort appears to communicate with said mother between July 15th and 18th, the date set for trial. Same might have resulted in locating Blocker and securing his presence. This is clearly not diligence. Vernon's C.C.P., p. 307 for collation of authorities; Yelton v. State, 75 Tex.Crim. Rep.; 170 S.W. Rep. 318; Brown v. State, 32 Tex.Crim. Rep..
The refusal of the continuance was made a ground of the motion for new trial. When so presented there arises the added questions of the likelihood that the absent witness would have testified as stated in the application for continuance, and also the question as to whether such testimony be probably true and likely to effect a result different from that attained. The testimony expected from Blocker appears so contrary to that given by unimpeached witnesses, and so impossible of truth, if theirs be true, as to seemingly justify the conclusions, if said witness was present on the trial he would not have given the testimony desired, and that if present and so testifying, it would not have been believed.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
Addendum
It is earnestly insisted that diligence to obtain the testimony of witness Blocker was shown, and that the continuance because of his absence should have been granted. It is stated in the motion for rehearing that the failure to obtain process for said witness between the time of the return of the indictment in October, 1920, and July 1st following, was through no fault of the appellant but resulted from the existence of a rule of the Criminal District Court of Harris county to the effect that no process should issue for a witness till the case was set for trial. If this matter were properly before us we would hold that the lower court had no power to make such rule. The district judge would seem to be in no position to restrain the accused from applying for process to the clerk of the court, whose duty it would be upon application to issue process. The right of compulsory process for witnesses is of the Constitution. Roddy v. State, 16 Texas Crim. App. 502; Homan v. State, 23 Texas Crim. App. 212. Its issuance is not a matter for the discretion of the *288
trial court. Edmondson v. State,
Reverting to the matter of the existence of a rule of the trial court refusing the issuance of process till causes have been set for trial, referred to in appellant's motion, we observe that this is not properly before us. If appellant relied on such rule as any sort of excuse for his failure to procure process for his witness to the next term of court after the return of the indictment, the facts justifying such reliance should have been authenticated by the trial court in some way so that we might have considered such matter. By no bill of exceptions, nor any qualifications to any bill of exceptions, nor in any other way save the statement thereof in his motion for rehearing, has this matter of fact been substantiated here. We judicially know of no such rule, nor did appellant apply in due season for process and make the refusal of same the subject of a bill of exceptions. The record before us speaks only the facts as set out in our opinion, and we are compelled to adhere to the utterances of the record before us as controlling, and we are forced to conclude that same shows such lack of diligence in the matter of obtaining process for said witness as called for a refusal of the continuance under discussion. We recognize the correctness of the proposition that when in doubt as to diligence in such cases, such doubt is usually resolved in favor of the accused, and that this is specially true of the first application for continuance. Phillips v. State, 50 Tex.Crim. Rep.; Hardin v. State,
The correctness of our conclusion that a reversal should not be granted unless we were impressed with the belief that had the absent testimony been at hand a verdict more favorable to appellant would likely have resulted, is affirmed in Browning v. State, 26 Texas Crim. App. 432; Boyett v. State, 26 Texas Crim. App. 689; Pearce v. State, 27 Texas Crim. App. 93; Massie v. State, 30 Texas Crim, App. 64; Millisons v. State,
Overruled.