Shaffer v. State

• Decision Date: 27 January 1932
• Docket Number: No. 14805.,14805.
• Citation: 52 S.W.2d 1054
• Parties: SHAFFER v. STATE.
• Court: Texas Court of Criminal Appeals

52 S.W.2d 1054

SHAFFER v. STATE.

No. 14805.

Court of Criminal Appeals of Texas.

January 27, 1932.

Rehearing Denied June 15, 1932.

Second Rehearing Denied October 12, 1932.

Appeal from District Court, Lamar County; Geo. P. Blackburn, Judge.

Sylvester Shaffer was convicted of forgery, and he appeals.

Affirmed.

S. W. Pratt, of Cooper, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, P. J.

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 signed 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 acquittal.

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 20, 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, Tex., and Austin Craven, a resident of Lamar county, Tex. The subpœna 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 subpœna 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 subpœna 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 subpœna 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 subpœna 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, Tex., on the 29th of April, 1931, when he learned that Sylvester Shaffer'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 subpœna 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, art. 543, and cases collated.

The judgment is affirmed.

On Appellant's Motion for Rehearing.

CHRISTIAN, J.

Appellant insists that we were in error in holding that the accomplice witness Burton was sufficiently corroborated. Burton testified that he, Hugh Caperton, and appellant were desirous of obtaining some money for the Christmas holidays; that the three of them decided to write some checks purporting to be executed by Dr. J. E. Fuller; that pursuant to their agreement appellant wrote three checks and signed J. E. Fuller's name to them; that appellant stated to him (the witness) that he cashed his check at Montgomery-Ward's where he bought...