
    JORDAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Criminal Law (§ 598) — 'Tbial—Contin-uance-Absence oír Witness.
    Where no process was issued for a witness, defendant relying on his promise to attend court, but when the case was called he was sick, there was no error in overruling a motion for continuance because of his absence, especially where, before motion for new trial, he had died.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. § 598.]
    2. Criminal Law (§ 1166) — Continuance-Absence oe Witness — Other Prooe.
    Defendant was not prejudiced by the refusal of a continuance because of the absence of witnesses, by whom he expected to prove his general reputation, where the fact that his reputation before the prosecution was that of an honest man was amply proved by other witnesses, and was not denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3111; Dec. Dig. § 1166.]
    3. Criminal Law (§ 598) — Trial—Continuance-Absence of Witness.
    An indictment for passing a forged instrument was returned in January, 1911, and sub-pcena was not issued for an absent witness until July 4th, when the cqse was set for trial on July 17th. The subpeena was never served, because the officer claimed that the witness was not in the county. Held, that the diligence was not sufficient to justify the court in granting a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    4. Forgery (§ 43) — Uttering Forged Note —Defenses—Evidence.
    In a prosecution for uttering a forged note, on which the names of several individuals had been forged, evidence that if the note had been presented to some of them they would have signed it, at defendant’s request, was properly excluded as immaterial.
    [Ed Note. — For other cases, see Forgery, Cent. Dig. § 115; Dec. Dig. § 43.]
    5. Witnesses (§ 204) — Attorneys — Privilege.
    Where defendant’s attorney got possession of certain forged notes from others than defendant, and under circumstances excluding the idea that defendant was in any way connected with the attorney’s possession, or had knowledge that the attorney had obtained them, the attorney’s professional relation with defendant did not render his evidence as to obtaining the notes privileged.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 198, 759, 760, 762; Dec. Dig. § 204.]
    6. Forgery (§ 39) — Uttering Forged In-strumento-Notes — One of a Series.
    Where, in a prosecution for uttering a forged note, only one note was described in the indictment, and there was nothing in the record to show that such note was part of a transaction in which eleven notes, aggregating $2,300, were given, the note described in the indictment was not subject to exclusion, because it was one of a series of notes, all of which were passed at the same time.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 39.]
    7. Forgery (§ 39) — Uttering Forged Note —Indorsement.
    In a prosecution for uttering a forged note, the fact that an indorsement of a third person was placed on the back thereof long after the making and passing of the note did not affect its admissibility in evidence.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 39.]
    8. Forgery (§ 43) — Uttering Forged Note —Defenses—Evidence.
    In a prosecution for uttering a forged note, eivdence that the holder, in consideration of payment of the note and others alleged to have been made and uttered at the same time, agreed to mark them settled and deliver them to defendant, and that he also agreed to execute a petition, asking the court to dismiss the prosecution because, in the holder’s opinion, there was no criminal intent, was inadmissible.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 43.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    A. N. Jordan was convicted of passing a forged note, and he appeals.
    Affirmed.
    Nat Llewellyn, for appellant. Frank 01-torf, Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic anfl section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   HARPER, J.

Appellant was prosecuted under an indictment charging him with knowingly and fraudulently passing as true to I. N. Conyers a forged instrument. When tried, he was adjudged guilty, and his punishment assessed at two years in the penitentiary.

The court overruled appellant’s application for a continuance, and this is assigned as error. As to the witness Z. I. Harlan, no process was ever issued; appellant relying on his promise to attend court. When the case was called, Mr. Harlan was sick, and shortly thereafter died. The court, at the time of overruling the motion for a new trial, was aware that Mr. Harlan was dead. Inasmuch as there was a total lack of diligence, there was no error in overruling the motion as to this witness, and especially does it not make even an equitable showing at the date of the overruling of the motion for a new trial, as the witness at that time had passed to that bourne from which no traveler ever returns.

As to the witnesses by whom he stated he expected to prove his general reputation, it presents no ground for continuance. The fact that his reputation, prior to this transaction, was that of an honest, straightforward man was amply proven by witnesses in attendance on court; the state introducing no evidence to the contrary.

As to the witness Burnes, the indictment in this case was returned in January, 1911; the subpoena was not issued until July 4th, when the case was set for trial on July 17th. The subpoena had never been served; the officer stating that the witness was not in Bowie county. The diligence is not sufficient as stated in the application, and, in addition thereto, defendant was convicted of passing a forged instrument; the witness Stalworth testifying, not only that he did not sign it, but that appellant admitted to him he had signed his (Stalworth’s) name to the note, and stated to others that Stalworth had not signed the note. Under these circumstances, the court did not err in overruling the motion and refusing a new trial on this ground.

It appears from the record that a civil suit had been filed on the note. On this trial Geo. C. Riley, W. H. Bolin, W. T. Wiggins, P. Adams, and H. B. Stalworth all testified they had not signed the note, and had authorized no person to sign their names to the note. There was no effort made to prove that either one of them had signed the note; but defendant offered to prove by some of them that if the note had been presented to them they would have signed it, at the request of appellant. As they testified they had not signed the note, nor authorized appellant or any other person to sign their names to the note, this would be no defense, and the court did not err in refusing to admit this testimony. Adams and Stalworth testified that appellant asked them and they refused to sign the note in question.

About a week before this trial, the attorney of appellant went to Mr. Harlan, who bad. charge of the notes, paid them off, and possession was delivered to him. He turned them over to his wife, who in turn delivered them to Mr. John Jordan. The attorney testified that the notes were never seen by appellant after he got possession of them and until he delivered them to John Jordan. Appellant objected to his attorney being required to give this testimony, on the ground “that all the matters inquired about had come to his knowledge by virtue of his employment as counsel in the case.” The witness was not asked, nor was he required, to testify that appellant had any connection with him paying off the notes or securing possession thereof. On the other hand, he excludes the idea that appellant had anything to do with it by volunteering the statement: “I will make a statement further, after having been forced to go into this matter, that the notes were never seen by the defendant after I got hold of them until I parted the possession of them. They are not now in my possession, nor in the possession of the defendant, that I know of.” Inasmuch as the attorney in his testimony makes it clear that he did not get possession of the notes from his client, and by his testimony would exclude the idea that his client was in any way connected with his (the attorney’s) possession of the notes, this transaction does not come within the provisions of privileged communications between a client and his attorney. Mr. Underhill says: “He [an attorney] may be compelled to. produce forged writings which were given him for the purpose of suppressing evidence.” Section 177, and authorities there cited. See, also, Wharton’s Crim. Ev. (9th Ed.) §§ 503, 504, and notes; Am. & Eng. Ency. of Law, vol. 10, p. 278, note “p,” and vol. 23, p. 73; Orman v. State, 22 Tex. App. 616, 3 S. W. 468, 58 Am. Rep. 662; Everett v. State, 30 Tex. App. 686, 18 S. W. 674. Had he received this note from his client, a different question would be presented; but in this case it appears from the evidence his client had no connection with his obtaining possession of the note, or disposition of same; and therefore the matter would not be privileged.

The defendant objected to the note, alleged to have been passed, being introduced in evidence, first, because it was one of a series of eleven notes, aggregating $2,300, all of which were passed at the same time, and the introduction of one note was introducing but a part of the transaction; second, because the note on the back was indorsed, “I. N. Conyers, paid $23.70.” The court, in approving the bill, thus qualifies it: “No other note than the.one described in the indictment in this case was introduced, or offered for introduction, in evidence, and there is nothing in the record to show that said note was a part of a transaction in which a note for $2,300 was made, divided into 11 different notes. The note introduced was and is a complete promissory note in itself. The testimony of I. N. Conyers shows that the indorsement on the back thereof was made long after the making and passing of said note.” As qualified, this bill presents no error, as it appears that the note was described in the indictment just as it was at the time it was passed.

The ground in the motion, that “the court erred in refusing to allow the defendant to prove by I. N. Conyers that, in consideration of the payment of said notes, he agreed to mark said notes settled and turn them over to defendant, thus depriving the state of the notes as evidence, and, further, that he agreed to execute a petition asking the court to dismiss said cause, because, in his (Conyers’) opinion, there was no criminal intent,” presents no error. This is not a case where the question of intent arises, if, as shown by the testimony, appellant passed the note knowing that the parties named had not signed it. Conyers knew nothing and offered to testify to nothing that would show or tend to show that appellant did not know the note was a forgery; and the court did not err in refusing to permit him to testify to an agreement made by him to condone, in so far as he could, the crime, if a crime had been committed. The questions on trial were: Were the names of the parties forged to that instrument? Did appellant know that fact, and, knowing it, did he pass the note? The testimony of the witnesses all make it clear that the note was a forgery; that appellant passed it; and the witness H. B. Stalworth makes it equally true that appellant knew that fact, at the time he passed the note, for the witness says appellant admitted to him that he (appellant) had forged his (Stalworth’s) name to the note. The evidence is equally positive that the note was payable to I. N- Conyers and delivered to him in part payment for some 10 head of mules, which were delivered by Conyers to him.

There being no reversible error, the judgment is affirmed.  