Shaffer v. State

52 S.W.2d 1054, 121 Tex. Crim. 137, 1932 Tex. Crim. App. LEXIS 421

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 1932
• Docket: No. 14805.
• Status: Published

Opinions

MORROW, Presiding Judge.

The offense is forgery; penalty assessed at confinement in the penitentiary for two years.

‘ It is charged in the indictment that the appellant passed to Otha Cannaday, a forged instrument in writing of the tenor following:

“Paris, Texas, 12/20 1930.

“the first national bank 88-51 of Paris, Texas

“Pay to E. H. Adams, or bearer $18.70

Eighteen and 70/100 Dollars

“J. E. Fuller.”

Reed Burton, an accomplice, testified that he, the appellant and Hugh Caperton conspired to write checks, forging the name of Dr. J. E. Fuller; that the appellant wrote three checks and sighed Fuller’s name to them. One check was for $14.80 which the witness undertook to pass, but was arrested and confessed. The appellant took the check for $18.70 which he had written and cashed'it before "an attempt was made by Burton. Learning from the appellant of his success, Burton assumed that he could do likewise. - Fuller declared that he did not make the check.

The testimony of Cannaday and Fuller is sufficient corroboration of that of the accomplice Burton.

The court properly refused to instruct a verdict of acquital.

The finding of the jury rejecting the appellant’s plea of insanity is supported by the evidence. -

The. indictment was filed. January 8, 1931. The trial began on April 27, 1931. The case was first set for trial on April 20th, 1931. The court began on the 5th of March, 1931.

The first application for a continuance was to secure the testimony of Hugh Caperton, a resident of Delta county, Texas, and Austin Craven, á resident of Lamar county, Texas. The subpoena for Caperton was issued “at the very earliest time after said cause was set down for trial in this court for April 20, 1931.” Service upon Caperton was not obtained-, according to the averments, because he was temporarily in Oklahoma. The appellant was arrested on the 8th day of January, 1931. Diligence to secure the attendance of the witness was not shown by the averments'. Had "a. subpoena been issued within a reasonable time after the arrest, service upon the witness might have been had. Caperton did not appear upon the 20th of April. The motion is silent touching the date that he left for Oklahoma. It seems that no subpoena for Austin Craven was issued until the 14th day of April, 1931. This was not diligence, and for want of diligence, both as to Caperton and Craven, the court, in overruling the first application for a continuance, was within the law. The case seems to have been postponed from the 20th to the 27th of April, and on the latter date, a second application for a continuance was made because of the absence of Caperton. It appears that a subpoena for him was first issued on the 14th day of April, 1931, and sent to the sheriff of Delta county. As stated above, the appellant had been arrested since the 8th day of January. No sufficient reason is given for not having issued a subpoena for Caperton at an earlier date.

Attached to the motion for new trial is the affidavit of Austin Craven to the effect that he had promised the brother of the appellant to be present at the trial; that he had lived in Delta county prior to moving to Lamar county on January 1, 1931; that he knew the dates of the meeting of the'court in Delta county and had been informed that the criminal court of Lamar county would meet on the same date; and believing that the term of court would not meet until June, he left Lamar county on April 6, 1931, and went to the oil fields. He later went to San Angelo and arrived at Cooper, Texas, on the 29th of April, 1931, when he learned that Sylvester Schaffer’s case had been tried on the 27th of April in Lamar county. It is obvious from the record that no diligence was shown to secure the testimony of Craven. No subpoena was issued for him until the 14th day of April, 1931, and no legal reason is given for not using diligence to secure his attendance. In overruling the second motion for a continuance, the court committed no error. See Vernon’s Ann. Tex. C. C. P., 1925, vol. 1, p. 420, article 543, and cases collated.

The judgment is affirmed.

Affirmed.