Hennessey v. State

• Decision Date: 18 May 1887
• Citation: 5 S.W. 215
• Parties: HENNESSEY v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 215

HENNESSEY v. STATE.¹

Court of Appeals of Texas.

May 18, 1887.

Appeal from district court, Travis county; Hon. A. S. WALKER, Judge.

A term of two years in the penitentiary was the penalty imposed on the appellant by the jury, upon his conviction for forgery by altering a written account literally against "the senate chamber of the twentieth legislature," but in effect against the state of Texas.

                The indictment sets out the account as it was before the alteration, and also
                as it appeared after the alteration; the only difference being that in its unaltered
                

                condition it called for $100, and in its altered condition for $150. In its
                altered condition as set out in the indictment, it reads as follows, omitting
                vignette, etc.:                                  "AUSTIN, Feby. 11, 1887
                "The Senate Chamber of the 20th Legislature to P. H. Hennessey, Sgt. at
                    Arms
                "To stamps, wrappers, and postal cards furnished to senators,     $150 00
                 "I certify  this bill correct.        P. H. HENNESSEY, Sgt. at Arms
                      "H. KNITTEL, Chairman on Com. Contg. Exp
                 "Approved,                      T. B. WHEELER, Lieut. Governor."
                

The misplacement of the dot over the letter "i" in the name "Knittel" raised the question of variance noticed in the fourth head-note. The evidence established the fact that defendant raised an approved account for $100 by changing the first "0" to a figure "5," and drew $150 on the same.

Walton, Hill & Walton, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

WILLSON, J.

1. We perceive no abuse of the discretion of the trial judge in refusing defendant's application for a continuance. As to the witness Israel, requisite diligence to obtain his testimony is not shown. The indictment was returned into court March 17, 1887. Defendant was already under bond taken before an examining court, to answer this charge should the grand jury present an indictment therefor against him. He states that, as soon as he learned that an indictment had been presented against him, he appeared before the court and entered into a recognizance, but we are not informed by said application of the exact date when he entered into said recognizance. At the time of entering into said recognizance the cause was set for trial on April 20, 1887, more than one month after the presentment of the indictment. It was not until April 9, 1887, that defendant had an attachment issued and forwarded to Harrison county, Texas, for said witness Israel, that being the county of said witness' residence. It appears upon the return of said attachment that, before it reached the hands of the sheriff of that county, said witness had removed from the county and the state to Washington City, D. C. It does not appear from the application when said witness left Harrison county, or that service of an attachment might not have been had upon him if such process had been applied for and forwarded to said county promptly, nor is it made to appear that by the use of diligence the testimony by deposition of said witness could not have been obtained in time for the trial.

As to the other absent witnesses, one of them, Lewis, was present and testified on the trial; and the facts expected to be proved by the others cannot be regarded as material when considered with reference to the evidence adduced on the trial. We cannot perceive in what respect, even in the remotest degree, it would affect any issue in the case, or would throw any light upon the transaction, to prove by these witnesses, Senators Claiborne, Upshaw, McManus, and Houston, that they actually received from the defendant the amount of postage material charged to them. This was not an issue in the case. It was not shown, or proposed or attempted to be shown, by the prosecution, that the defendant had charged up in his account-book against these senators any more postage material than they had actually received from him. If it had been proved that his transactions with them had been perfectly fair and honest on his part, this fact would not even tend to prove that he did not falsify his accounts with other senators. The fact that a man has not swindled, committed perjury, theft, or other crime in one or more instances when opportunities presented, is neither admissible nor material to disprove guilt of a crime with which he is charged and on trial.

2. A careful inspection of the original indictment sent up with the record satisfies us that the alleged forged instrument is correctly copied into the indictment and that there is no variance between the indictment and said instrument. In writing the name "Knittel" in the indictment, in setting forth the instrument as it appeared after alteration, the pleader has dotted one prong of the letter "n" instead of placing the dot directly over the letter "i." The letters forming the word "Knittel" are, however, plainly and distinctly written, and the mere misplacement of the dot intended for the letter "i" certainly cannot be held to constitute a variance.

It is alleged in the indictment that the alleged forged instrument was approved by "H. Knittel, chairman of the committee on contingent expenses of the senate," etc. An inspection of the instrument...