
    BOYD v. STATE.
    (No. 11006.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Nov. 16, 1927.
    1. Criminal law <®=598(6)—Delay of over year in securing subpcenas for witnesses, where unexplained, held want of diligence warranting refusal of continuance (Code Cr. Proc. 1925, art. 54-1).
    Motion for continuance on account of absence of witnesses residing in other counties hold properly denied, under Code Cr. Proc. 1925, art. 541, for want of diligence in securing their attendance, where subpcenas were not issued for witnesses until more than one year after indictment was filed, and where no reasons for delay were given.
    On Motion for Rehearing.
    2. Criminal law <§=>957(1)—Conclusion on motion for continuance, that testimony as to signature on alleged forged note was probably untrue, held not abuse of discretion.
    Conclusion of trial court in forgery prosecution that testimony of absent witnesses as to execution of forged note under claim of authority was probably untrue, and therefore- warranted denial of continuance for absent witnesses, held not abuse of discretion.
    Appeal from Criminal District Court, Dallas County; O. A. Pippen, Judge.
    John J. Boyd was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    G. H. Grane and A. S. Baskett, both of Dallas, for appellant.
    William McCraw, Criminal Dist. Atty., and“ Andrew J. Priest, Asst. Criminal Dist. Atty., both of Dallas, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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. O. 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 off his arreát. 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 22d day of January, 1926, and the trial took place on February 7, 1927. It was alleged that Hilburn resided in Greenville, Hunt county, Tex.; 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, Tex., 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, Oollin county, Tex., 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 suggests 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. Article 541, O. O. P. 1925. Unexplained delay such as that revealed by the present record fails to satisfy the law de-mafiding diligence. See 1 Vernon’s Ann. Tex. C. C. P. 1925, p. 428, note 6; also, Jackson v. State, 103 Tex. Cr. R. 258, 280 S. W. 836; Andrews v. State, 100 Tex. Cr. R. 395, 273 S. W. 568; Musselman v. State, 101 Tex. Cr. R. 96, 274 S. W. 628.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant urgesl that, although diligence to secure the witnesses Hilburn and Simmons is lacking, the trial court nevertheless should have granted a new trial .upon the proposition that, when all the evidence produced on the trial was considered, it appeared that the testimony of the absent witnesses was probably true and might have brought about a different result. Under the record, we doubt whether the rule invoked by appellant is applicable because of an almost entire want of diligence. As to the point insisted upon, however, we quote from the opinion on rehearing in Alexander v. State, 82 Tex. Cr. R. 431, 199 S. W. 292, as follows:

“There are instances in which a motion for new trial should be granted because of absent testimony, though the application for a continuance to obtain it was properly overruled for want of diligence. Branch’s Ann. P. C. 188, § 319, and cases cited; Casanova v. State, 12 Tex. Cr. App. [Tex. App.] 554; Baxter v. State, 68 Tex. Cr. R. 136, 150 S. W. 912. These instances are these only in which, from the evidence adduced on the trial, the appellate court is impressed with the conviction not merely that the appellant might have been prejudiced, but that it is reasonably probable that' a more favorable verdict would have resulted. Covey v. State, 23 Tex. Cr. App. Tex. App.] 391, [5 S. W. 283]; Fuller v. State [69] 59 Tex. Cr. R. 534, 154 S. W. 1021; Branch’s Ann. P. C. 188, § 319 and cases cited; also page 128, § 201. The failure to attach to the motion for new trial the supporting affidavit or evidence of the absent witness does not absolve the court from the duty of considering the motion, otherwise regular; but it does bear upon the question presented on appeal as to whether in refusing to grant the motion the trial court committed an error requiring reversal. Sharp v. State, 71 Tex. Cr. R. 640 [160 S. W. 369]; Polk v. State, 60 Tex. Cr. R. 462 [132 S. W. 134]; Davis v. State, 64 Tex. Cr. R. 8 [141 S. W. 264]; McMiffen v. State, 66 Tex. Cr. R. 228 [288], 146 S. W. 1190; Browning v. State, 26 Tex. Cr. App. [Tex. App.] 432 [9 S. W. 770]; Vernon’s C. C. P. 321, and cases cited; Hyman v. State, 59 Tex. Cr. R. 29 [127 S. W. 221]; Singleton v. State, 57 Tex. Cr. R. 560 [124 S. W. 92].”

It is averred in appellant’s application for continuance that Simmons would testify that be executed the alleged forged check, signing thereto the name of Walker, and that Hil-burn would testify that he was present and saw Simmons execute the check, claiming a right to sign Walker’s name. The testimony shows that appellant had an opportunity to toe familiar with Walker’s handwriting and that the name signed to the check was a fair imitation ofi Walker’s genuine signature. Walker positively asserts that he did not know Simmons and had never heard of him. It is not likely that, if Walker’s name had heen signed to the check by a party who thought he had authority so to do, an effort to imitate the genuine signature would have been necessary. The state’s evidence was that appellant gave the check in payment for a suit of clothes which he had on when arrested and identified by the state’s witnesses. In view of these facts, we cannot bring ourselves to believe that Simmons would have assumed responsibility for the execution of the forged check, or that Hilburn would have testified as expected. There is no affidavit from either witness attached to the motion for new trial verifying the averments in the application for continuance as to their testimony. Under the circumstances, we think the trial court ahused no discretion in concluding that the testimony expected from the witnesses was not probably true, and therefore committed no error in overruling the motion for new trial, based upon the denial of the continuance.

The motion for rehearing is overruled. 
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