Bedford v. State , 91 Tex. Crim. 285 ( 1922 )

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, 90 Tex. 234; Words Phrases, p. 1919.

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 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.

ON REHEARING. March 15, 1922.