
    BEDFORD v. STATE.
    (No. 6695.)
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1922.
    Rehearing Denied March 15, 1922.)
    1. Forgery <&wkey;28(4) — Motion to quash where charging part of indictment called forged trust “deed,” a deed, properly overruled.
    Where, in the charging part of an indictment, the instrument alleged to have been forged was called a deed, but as set out in hsec. verba it was a deed of trust, a motion to quash addressed to the alleged contradictory recital was properly overruled; a trust “deed” being a deed within the definitions (citing 2 Words and Phrases, First and Second Series, p. 1919).
    2. Criminal law <&wkey;598(2) — On facts showing lack of diligence in locating witness, refusal of continuance not error.
    Where an indictment was returned October 30, 1920, and no subpoenas were issued or applied for until July 1, 1921, and process for defendant’s witnesses was returned unserved July 5 and July 8, but defendant located the mother of one of the witnesses on July 15, from whom he expected to learn where witness was, but no further effort was made before trial on July 18, there was such lack of diligence it was not error to deny continuance.
    3. Criminal law <&wkey;597(l) — Where absent witness’ testimony would not have been believed, no error In refusing continuance.
    Where the testimony expected of an absent witness appears so contrary to that given by unimpeached witnesses and so impossible of truth that if the witness were present his testimony would not be believed, there was no error in refusing continuance.
    On Motion for Rehearing.
    4. Witnesses <&wkey;l— Right of compulsory process for witness not a matter of discretion.
    The right of compulsory process for witnesses is of the Constitution, and its issuance is not a matter for the discretion with the trial court, and one who fails to follow the requirements of Vernon’s Ann. Code Cr. Proc. 1916, arts. 525-545, on witnesses and the manner of enforcing their attendance, must abide by the consequences.
    5. Criminal law <&wkey;603(l I) — Statement, in application for continuance, that defendant made diligent inquiry to locate witness, a conclusion.
    The statement, in a motion for continuance, that defendant made diligent inquiry to locate a witness, was a conclusion; a mere affirmation of diligence not being sufficient, but the facts must be set forth showing the diligence.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    D. L. Bedford was convicted of forgery, and he appeals'.
    Affirmed.
    Green & Boyd, of Houston, for appellant.
    E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

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 lieec 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, 38 S. W. 33; 2 Words and Phrases, First Series, 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, Tex., 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. Cr. R. 38, 170 S. W. 318; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596.

The refusal of the continuance was made a ground of the motion for new trial. When so presented there arisesi 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.

On Motion for Rehearing.

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 tinte 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 Tex. App. 502; Homan v. State, 23 Tex. App. 212, 4 S. "W. 575. Its issuance is not a matter for the discretion of the trial court. Edmondson v. State, 43 Tex. 230. The statutes are plain in their requirements (see articles 525-545, Vernon’s C. C. P.), and one accused of crime who fails to follow their direction must abide the consequences. Skipworth v. State, 8 Tex. App. 135. The process issued on July 1, 1921, for Blocker'was returned on July 5th not served. The date of the setting of the trial was July 18th. In our opinion we stated that what was said in the application for continuance to the effect that appellant made diligent inquiry concerning the whereabouts, of said witness between July ,5th and July 15th was but a conclusion. Appellant complains in his motion of this statement of ours. A mere affirmation of diligence is not sufficient, but the facts must be set forth showing such diligence. Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317; Stephens v. State, 69 Tex. Cr. R. 437, 154 S. W. 996.

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. Cr. R. 128, 98 S. W. 1051; Hardin v. State, 52 Tex. Cr. R. 239, 106 S. W. 352; Simmons v. State, 58 Tex. Cr. R. 574, 126 S. W. 1157.

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 Tex. App. 432, 9 S. W. 770; Boyett v. State, 26 Tex. App. 689, 9 S. W. 275; Peace v. State, 27 Tex. App. 93, 10 S. W. 761; Massie v. State, 30 Tex. App. 64, 16 S. W. 770; Millirons v. State, 34 Tex. Cr. R. 12, 28 S. W. 685. Appellant claimed that his absent witness Blocker would swear that he was present when one John Connor requested appellant to prepare certain notes and a deed of trust, and that said witness knows that appellant did prepare a deed of trust and notes, and, being called away to Goose Creek, placed the papers' he had prepared near a cash register and left them there, saying that he had filled out the acknowledgment on the deed of trust for one Smallwood to sign. An inspection of the application shows that it is not stated that this witness would swear that said papers were the alleged forged papers, nor that appellant did not in fact fill out and sign Smallwood’s name to the notes and deed of trust; nor does appellant undertake to place in the mouth of said absent witness any testimony as to what became of said papers later. The forgery was of the name of one Miles Small-wood to a deed of trust. Smallwood denied the execution of the instrument, and further testified that after he learned of such forgery he asked appellant how he came to sign his name thereto, and was informed by the latter that he had expected to pay off the notes and take the matter up before Smallwood learned of it. The witness Connor testified that he received the alleged deed of trust from appellant fully prepared and executed and delivered same to Armstrong, who advanced the $250 involved. This money Con-nor said he delivered to appellant. Armstrong testified that based on said papers he loaned $250 for a client, which money he gave to Connor. Mr. Russell, cashier of the First National Bank of Houston, swore that the signature of Miles Smallwood to the deed of trust was written by the same party who wrote said name in the body of the instrument and in the acknowledgment. This fact was not controverted save by the testimony of appellant. These facts seem to so completely negative and contradict any conclusion of lack of guilt based on the testimony, that we were led to observe that, if the testimony of Blocker as set out in the application had been present, it would not likely have produced a different result. •

So believing we conclude that the case was correctly decided, and appellant’s motion for rehearing will be overruled. 
      <&wkey;For other oases see same topic and KEY-NUMBEK in-all Key-Numbered Digests and Indexes
     