Thornley v. State

• Decision Date: 26 February 1896
• Citation: 34 S.W. 264
• Parties: THORNLEY v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 264

THORNLEY v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Perry F. Thornley was convicted of passing a forged instrument, and appeals. Affirmed.

Bowen & Creager and Hazlewood & Smith, for appellant. Mann Trice, for the State.

HURT, P. J.

Conviction for passing a forged instrument. Punishment assessed at two years' confinement in the penitentiary.

It appears, from the record, that the appellant was tried for forging the instrument in question on the 24th day of June, 1895, in the Forty-Eighth judicial district court (Tarrant county). At that time the instrument alleged to have been forged was in the possession of the father of the appellant, and was used upon the trial of the forgery case. After that trial, the father left Texas, and went to South Carolina, carrying with him the forged instrument. The indictment in this case was presented into the district court of the Seventeenth judicial district (Tarrant county), on June 26, 1895. From the testimony, it appears that the instrument was then in the possession of the father of the appellant. The indictment in this case alleges that said instrument was "in the possession or power of the said Perry F. Thornley, or is lost or destroyed, and is not within the reach of the process of the court, and not accessible to the grand jury." Said indictment gives notice to the appellant to produce the said original instrument upon the trial of the case, or secondary evidence will be used to prove its contents. The indictment does not attempt to set out the instrument by its tenor, but its substance. Counsel for the appellant insists that the notice to produce the instrument was not sufficient. We suppose that the contention is that the party in possession of the instrument should have been summoned by subpœna duces tecum. This was impossible, for the instrument was in the possession of the father of the appellant, who was beyond the process of the court. The indictment alleges the fact that the said instrument was not within the reach of the process of the court, and the testimony for the appellant establishes the truth of this fact beyond any sort of question. This being the case, all that could have been done was done. It is impossible for the state to send to another state its process, and bring to this state the father of the appellant, or the instrument. Upon this subject Mr. Bishop says "that, before evidence of the forgery will be admitted at the trial, the forged instrument must be produced, or its nonproduction justified from necessity, as by showing that it is lost or destroyed, or not within the reach of the process of the court. The general rule requiring the instrument is met by the fact that the instrument was not within the reach of the process of the court." See volume 2, § 433.

As before stated, the indictment does not attempt to...