68 S.W. 511 | Tex. Crim. App. | 1901
Lead Opinion
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years.
Error is assigned because the court overruled appellant's motion for continuance for want of the testimony of R.L. Turner, father of appellant. The application shows that he expected to prove by his father, who resided at the time of the trial in the Indian Territory, that he gave appellant authority to sign the name of S.L. Turner to the note upon which forgery is predicated in this case. No diligence is shown to secure the attendance of said witness. Besides, the witness is beyond the process of the courts of this State. Furthermore, we find in the record two controverting affidavits that the absent witness had told affiants that the note in question was a forgery. There was no error in the court's action overruling the application.
It is also contended the verdict of the jury is contrary to the evidence. We are of opinion that the evidence is amply sufficient to support the finding of the jury. The judgment is affirmed.
Affirmed.
Addendum
The judgment in this case was affirmed at the Tyler term, and now comes before us on motion for rehearing. Appellant contends that as the indictment charges uttering a forged instrument, and the judgment and sentence finding him guilty of forgery, the cause should be reversed because he has been convicted of an offense different from that charged in the indictment.
An inspection of the record shows that the indictment charges appellant with uttering a forged instrument. The verdict was general, finding defendant guilty, as charged in the indictment. The judgment entered against appellant was for forgery, and not for uttering a forged instrument in writing. The Assistant Attorney-General has filed a motion to reform and correct the judgment, in accordance with the provisions of article 904, Code of Criminal Procedure, and in support of this contention we are referred to Burks v. State, 55 S.W. Rep., 824. *72 An inspection of that case shows that the question was decided in accordance with the request contained in the motion. Said case overrules the former cases of Small v. State, 38 S.W. Rep, 798; Barfield v. State, 41 S.W. Rep., 610; Womble v. State, 43 S.W. Rep., 114. But it is now the law. In accordance therewith the motion is granted, and the judgment will be corrected so as to make the same conform to the indictment and original verdict of the jury, and the sentence as it appears in the transcript.
The motion for rehearing is overruled.
Overruled.