Boyd v. State

In his motion for rehearing appellant urges that although diligence to secure the witnesses Hilburn and Simmons is lacking, the trial court nevertheless should have granted a new trial upon the proposition that when all the evidence produced on the trial was considered it appeared that the testimony of the absent witnesses was probably true and might have brought about a different result. Under the record we doubt whether the rule invoked by appellant is applicable because of an almost entire want of diligence. As to the point insisted upon, however, we quote from the opinion on rehearing in Alexander v. State, 82 Tex.Crim. Rep., 199 S.W. 292, as follows:

"There are instances in which a motion for new trial should be granted because of absent testimony, though the application for a continuance to obtain it was properly overruled for want of diligence. Branch's Ann. P. C., p. 188, Sec. 319, and cases cited; Casanova v. State, 12 Tex.Crim. App. 554; Baxter v. State, 68 Tex.Crim. Rep., 150 S.W. 912. These instances are those only in which, from the evidence adduced on the trial, the appellate court is impressed with the conviction not merely that the appellant might have been prejudiced, but that it is reasonably *Page 141 probable that a more favorable verdict would have resulted. Covey v. State, 23 S.W. 1021; Branch's Ann. P. C., p. 188, Sec. 319, and cases cited; also p. 128, Sec. 201. The failure to attach to the motion for new trial the supporting affidavit or evidence of the absent witness does not absolve the court from the duty of considering the motion, otherwise regular; but it does bear upon the question presented on appeal as to whether in refusing to grant the motion the trial court committed an error requiring reversal. Sharp v. State, 71 Tex. Crim. 640; Polk v. State, 60 Tex.Crim. Rep.; Davis v. State,84 Tex. Crim. 8; McMillen v. State, 66 Tex.Crim. Rep.,146 S.W. 1190; Browning v. State, 26 Tex.Crim. App. 432; Vernon's C. C. P., p. 321, and cases cited; Hyman v. State,59 Tex. Crim. 29; Singleton v. State, 57 Tex. Crim. 560. "

It is averred in appellant's application for continuance that Simmons would testify that he executed the alleged forged check signing thereto the name of Walker, and that Hilburn would testify that he was present and saw Simmons execute the check, claiming a right to sign Walker's name. The testimony shows that appellant had an opportunity to be familiar with Walker's handwriting and that the name signed to the check was a fair imitation of Walker's genuine signature. Walker positively asserts that he did not know Simmons and had never heard of him. It is not likely that if Walker's name had been signed to the check by a party who thought he had authority so to do that an effort to imitate the genuine signature would have been necessary. The state's evidence was that appellant gave the check in payment for a suit of clothes which he had on when arrested and identified by the state's witnesses. In view of these facts we cannot bring ourselves to believe that Simmons would have assumed responsibility for the execution of the forged check, or that Hilburn would have testified as expected. There is no affidavit from either witness attached to the motion for new trial verifying the averments in the application for continuance as to their testimony. Under the circumstances we think the trial court abused no discretion in concluding that the testimony expected from the witnesses was not probably true, and therefore committed no error in overruling the motion for new trial based upon the denial of the continuance.

The motion for rehearing is overruled.

Overruled. *Page 142