Boyd v. State , 108 Tex. Crim. 138 ( 1927 )

Passing a forged instrument is the offense, punishment fixed at confinement in the penitentiary for a period of two years.

The instrument was a check for $43.50, payable to J. C. Simmons, or bearer, drawn on the Republic National Bank, and signed by Efton Walker.

The evidence is conflicting. From that of the state it appears that the check mentioned was forged; that it was possessed by the appellant and passed by him in payment of a suit of clothes which he was wearing at the time of his arrest. Witnesses who were present at the time the check was passed saw the appellant immediately after his arrest, identified him and identified the clothes which he was wearing as those which he had obtained by means of the forged check.

Appellant testified in his own behalf and denied the transaction in toto. He testified to an alibi and introduced some witnesses in support of that defensive theory. There was some impeaching testimony showing that the appellant and one of his witnesses had been previously indicted for offenses involving moral turpitude.

A motion for a continuance was made on account of the absence of three witnesses, namely, Hilburn, Simmons and Winters. The testimony of Winters was intended to impeach one of the state's witnesses, while that of the other two witnesses, according to the averments of the motion, was of a material nature. The indictment was returned on the 22nd day of January, 1926, and the trial took place on February 7, 1927. It was alleged that Hilburn resided in Greenville, Hunt County, Texas; that a subpoena was issued for him on January 31, 1927, and returned "not served" at a date not named. It was alleged that Simmons resided in Fort Worth, Tarrant County, Texas, at a certain street and number; that on the 31st of January, 1927, subpoena was issued for the witness, which was not attached to the motion but which the appellant claims was returned without any notation as to whether or not it had been served on the witness. A subpoena for Winters was issued on January 31, 1927, and sent to Farmersville, Collin County, Texas, where the witness was alleged to have resided, but the subpoena had not been returned. It is apparent from the averments that the process relied upon was not issued or called for until more than a year after the indictment was filed. There is nothing in the nature of the testimony sought nor anything otherwise appearing in the record which suggest any sufficient reason for the delay. To entitle one to a continuance, diligence in securing the attendance of the witness is a necessary prerequisite. It is so declared by statute, Art. 641, C. C. P., 1925. Unexplained delay such as that revealed by the present record fails to satisfy the law demanding diligence. See Vernon's Ann. Tex. C. C. P., 1925, Vol. 1, p. 428, Note 6; also Jackson v. State, 103 Tex. Crim. 258; Andrews v. State, 100 Tex.Crim. Rep.; Musselman v. State, 101 Tex.Crim. Rep..

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.