
    CLARY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.
    Rehearing Denied Nov. 20, 1912.)
    1. Criminal Law (§ 614) — Overruling Motion — Absence of Witnesses — Continuance.
    An application for a continuance on the ground of absent witness was properly denied where process had been issued for him at the preceding term, and a continuance for his absence was then granted, and no additional process had been since applied for.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1312-1314; 614.] see Criminal Dec. Dig. §
    2. Cbiminal Law (§ 665) — Trial—Separation op Witnesses.
    Under Code Cr. Proe. 1911, art. 719, providing that, on demand of defendant, the court may swear the witnesses and exclude them from the courtroom in custody of an officer, the discretion granted the court is not an arbitrary discretion, nor is the defendant limited to any particular time for making his demand, but may do so at any time while evidence is being taken.
    [Ed. Note. — For other cases, see Criminal Law, .Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 665.]
    3. Criminal Law (§ 1168) — Appeal—Harmless Error — Refusal to Put Witnesses Under Rule.
    Refusal to place witnesses under the rule was harmless error, where each witness testified only to independent facts, and they in no way supported each other.
    [Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3136, 3144; Dec. Dig. § 1168.]
    4.Criminal Law (§ 784*) — Instructions— Circumstantial Evidence.
    In a prosecution for perjury, where the issue was whether the prosecuting witness authorized defendant to sign his name to a note, the defendant testifying that he had been given such authority, which the prosecuting witness directly denied, a charge on circumstantial evidence was not called for.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    5. Criminal Law .(§ 1090) — Appeal — Exceptions — Necessity — Remarks by the Court.
    Remarks by the court stated in the motion for new trial cannot be reviewed where no bill of exceptions was reserved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    6. Criminal Law (§ 1090) — Review — New Matter — Evidence.
    Evidence adduced on new matter in the motion for new trial not reserved by a bill of exceptions, but simply copied in the transcript, signed by neither the district attorney nor the attorney for defendant, and bearing filing marks 30 days after the term, cannot be reviewed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    7. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence.
    When a witness has been subpoenaed, attends court, and is not placed on the witness stand, such diligence is not used as would authorize a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    8. Criminal Law (§ 942) —New Matter — —Witnesses—Affirmative Facts.
    A motion for a new trial alleging newly discovered evidence should be denied, where such evidence would only tend to impeach the testimony of a state’s witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2331, 2332; Dec. Dig. § 942.*]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    G. C. Clary was convicted of crime,.and he appeals.
    Affirmed.
    Levi Herring, of Glen Rose, for appellant. C. E. Lane, Asst. Atty. Gen., for'the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted under an indictment containing two counts; one charging forgery and the other passing a forged instrument. As appellant was adjudged guilty of forgery, it is unnecessary to discuss those grounds relating to the charge on passing a forged instrument.

There was no error in overruling the application for a continuance as qualified by the court; the court stating that the process had been issued for the witness at the preceding term of court and the witness had failed to appear, and the application for a continuance on account of this witness then acted on, and that no additional process has been applied for nor issued since the preceding term of the court.

In the next bill it is contended that the court erred in not enforcing the rule as to the witnesses when applied for by defendant. The court in approving the bill states that, when the witnesses were sworn, he asked if it was desired that the witnesses be placed under the rule and no request was made, but that subsequently defendant did make the request. We will state that, when the request was made, it should have been granted, as article 719 of the Code of Criminal Procedure gives -to the defendant the right to make this demand at any time while the evidence is being heard. While our decisions all hold this is a matter within the sound discretion of the court, yet it is not an arbitrary discretion of the presiding judge. It is a right given by law to a person on trial, and, if the evidence was such that any injury could have or possibly did result to the defendant, we would feel impelled to grant a new trial. However, in this case the testimony of the witnesses Milam and Johnson on direct examination could not have possibly been affected by the failure of the court to comply with the request, for they later testified to independent facts, and one in no way supported the other; they merely testifying to different features of the same offense. In rebuttal a son of the prosecuting witness was called, but be testified to no facts about wbicb bis father or Mr. Milam testified on direct<examination, and we fail to see bow any injury could or did result to defendant. Consequently, while the court was in error in refusing to grant the request, it is not such error as would or should result in a reversal of the case. McMillan v. State, 7 Tex. App. 142, and cases collated in section 707 of White’s Ann. Proc.

In another bill complaint is made of the language of the district attorney in his address to the jury. No charge was requested in regard thereto, and the remarks are not such that should result in a reversal of the case, if improper, about which fact we are not inclined to agree with appellant’s counsel. Pierson v. State, 18 Tex. App. 524; Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534, and other cases cited in Byckley’s Digest, p. 81 et seq.

The court did not err in refusing to charge on circumstantial evidence. The appellant admitted he signed his name to the note, and then claimed he carried it to the prosecuting witness, who authorized his name to be signed to it. This the prosecuting witness denied. The issue was, Did the prosecuting witness authorize his name to be signed to the note? Appellant testified that the witness did authorize it to be done. The state’s evidence was that no such authority had been given, consequently a charge on circumstantial evidence was not called for. Branch’s Crim. Law, § 203.

If the court made the remarks stated in the motion for new trial, no bill of exceptions was reserved; consequently it is not presented in a way we can review the matter.

The evidence adduced on the new matter alleged in the motion for a new trial was not reserved by a bill of exceptions, and is simply- copied in the transcript, signed by neither the district attorney nor the attorney for appellant. Court adjourned on November 23d, and this paper bears file marks of date December 23d, 30 days after adjournment, consequently it is not presented in a way we can consider it under the law. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263.

However, should we consider this testimony, it would present no grounds for a new trial. In the first place, it appears that the witness Sullivan was present and testified on the trial of the case. It also appears that the witness Wilson was in attendance on court, but was not placed on the witness stand. It has been frequently held by this court that, when a witness has been subpoenaed, attends court, and is not placed on the witness stand, such diligence is not used as would authorize a new trial. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 372.

If the witness would testify as stated, such testimony would only tend to impeach the testimony of the witness Gibson, and would be no affirmative fact, consequently presents no ground for a new trial under our decisions. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649.

We have carefully reviewed the entire case, and are of the opinion the judgment should be affirmed, for the state’s evidence, if true, presents a strong ease.

The judgment is affirmed.  