Clary v. State

• Decision Date: 23 October 1912
• Citation: 150 S.W. 919
• Parties: CLARY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 919

150 S.W. 919

CLARY v. STATE.

Court of Criminal Appeals of Texas.

October 23, 1912.

Rehearing Denied November 20, 1912.

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.

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 he testified to no facts about which his father or Mr. Milam testified on direct examination, and we fail to see how 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 767 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....