Usher v. State

• Decision Date: 04 May 1904
• Citation: 81 S.W. 309
• Parties: USHER v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

81 S.W. 309

USHER v. STATE.^*

Court of Criminal Appeals of Texas.

May 4, 1904.

Appeal from District Court, Wilson County; M. Kennon, Judge.

R. H. Usher was convicted of forgery, and he appeals. Affirmed.

W. O. McIndo and T. J. McMinn, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at five years' confinement in the penitentiary; and he prosecutes this appeal.

Appellant made a motion to continue the case, based on the absence of witness P. S. Johnson, and also of his counsel. The sheriff's return was that Johnson could not be found in the county after diligent search. Appellant says he expected to prove by said witness that he was present at the time when G. P. Palmer authorized him (appellant) to sign his (Palmer's) name to said note. In the motion for new trial, which brought up the action of the court overruling the motion for continuance as to the witness Johnson, the state presented an affidavit from the sheriff of Wilson county, which showed that he had lived in said county 12 or 15 years, and was thoroughly acquainted with the people of said county, and that he had never known a man in Wilson county named P. S. Johnson, and after diligent search could find no such man. There are also affidavits presented by the state of Maud Palmer and J. M. Worsham, which, in effect, traverse the account given by appellant in his testimony in regard to Palmer giving him authority to sign said note. Appellant testified that the authority given by Palmer was on the 12th of May, 1903, and that Maud Palmer and Roby Palmer were with their father, G. P. Palmer, at the time, and also P. S. Johnson, his absent witness. As stated, Maud testified that she and her sister did not go with her father to Floresville on that occasion, and Worsham states in his affidavit that on that occasion Miss Agnes Palmer, sister of G. P. Palmer, was with the prosecutor, and that his daughters, Maud and Roby, were not with him, and that appellant was not present on that occasion. If he was anywhere in the neighborhood, he had no knowledge of it. Of course, these affidavits are only referred to for the purpose of supporting the state's view that Johnson was a fictitious witness, and could not be found by the sheriff, and to indicate the improbability that he could have been found at any time, and brought into court and testify as alleged.

Appellant insists that the motion for continuance should have been granted because of the absence of his counsel. We know of no authority that would authorize the court to continue a case for the term because employed counsel was out of the state on other business. However, appellant brought this matter forward again in motion for new trial. It appears that the attorney who was absent returned from New York before the expiration of the term of the court, and then insisted that the court set aside the conviction. This was some 10 days after appellant's first motion for new trial had been overruled and sentence passed upon him. This new motion was overruled, and appellant assigns this as error. If the court was correct in overruling the original motion for continuance, this afforded no ground for setting aside the conviction. Appellant insists that the Constitution guaranties to one accused of crime the right to be heard by counsel. Of course, this right is predicated on the proposition that appellant has counsel present at his trial, and desires to be heard. Employed counsel have no right to interfere with or delay terms of court. If, after the employment of counsel, such counsel expect to be absent during the term, he should have arranged some setting of the case with the state. When counsel left for New York, he evidently expected to be absent a considerable portion of the term of court, and before his departure he should have either arranged for the setting of the case at some time when he could reasonably be present, or have engaged other counsel, or had his client to do so. None of these matters were suggested to the court. The motion made by appellant on account of the absence of his counsel was not to postpone to some day of the term, but absolutely to continue the case to the next term. To reverse the case on the grounds here set up with reference to the absence of counsel would place it within the power of counsel to absolutely control the running of the courts and the disposition of cases. There was no error in the action of the court.

Appellant made a motion to arrest the judgment because of an alleged defect in the indictment. The indictment alleges the forgery to have been of a note for $145 in favor of H. W. Wiseman & Co., bankers, and it nowhere alleges whether H. W. Wiseman & Co. was a copartnership, stating the names of the firm members, or a joint-stock company, or a corporation. This is the ground upon which appellant urges that the indictment should be quashed and the prosecution dismissed. He cites us to a number of cases in which it has been held that, where the name of some banking institution is set out in the indictment, it is incumbent on the pleader to aver the incorporation of such institution. White v. State, 24 Tex. App. 232, 5 S. W. 857, 5 Am. St. Rep. 879, and Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098, were both indictments for theft, and in each of...