Clary v. State (150 S.W. 919, 1912)

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 be testified to no facts about wbicb bis father or Mr. Milam testified on direct