Appellant was convicted of forgery, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
There was no error in the action of the court overruling the continuance in this case. The diligence used was not sufficient. This case was tried at the January term, 1901, of the District Court of Delta County. Subpoena appears to have been served on the absent witness, in Rockwall County, on the 18th day of May, 1900. It is not shown that this witness obeyed said subpoena in the interim, or whether he attended court in Delta County between the time of service and the time of trial. It should have been shown that he obeyed said subpoena, otherwise an attachment should have been issued for him. Moreover, the testimony of the witness Orr was for the purpose of impeaching the State's witness, and a continuance will, ordinarily, not be granted on this account.
Appellant objected to the introduction of the alleged forged instrument on account of a variance between it and that set out in the indictment. We do not believe the objection was well taken. Nor was appellant's motion to quash the indictment well taken. On the trial appellant asked a special instruction setting up his defense of a want of intent to injure or defraud Sherfield, or anyone else by the execution of the instrument. The proof on this behalf, on the part of *Page 612 appellant, showed that the alleged forged instrument was executed by him for the purpose of getting into a game of cards; that is, that two of the parties in the game did not desire to play with him because they believed he was in with Duncan, and that he had no money of his own. Appellant testified that by a secret understanding between him and Duncan he was to make a note and sign Sherfield's name to it, and, when the game opened, he was to present this note to Duncan, and Duncan was to loan him money on the note, or sell him chips with which to play in the game; and that it was the understanding between him and Duncan that said note was only to serve this purpose, and, at the expiration of the game, Duncan was to restore to him said note; that the whole purpose of its execution was to deceive the two other players in the game, and lead them to believe he had money or property. The charge requested embodied in detail this phase of the case, and instructed the jury, if they believed said note was so executed, that there was no intent to injure or defraud, and to find appellant not guilty. We would remark, in passing, that this was an extraordinary defense, but concede it presents a legal defense to the State's accusation, in that, if it was true, there was no intent to injure or defraud anyone, which is required by our statute in order to constitute forgery, still it occurs to us that the court sufficiently presented this matter to the jury; for, after charging them that before they could convict appellant they must believe that the instrument in question was made with intent to injure or defraud, he then instructed the jury substantially as follows: "If defendant did not sign the name W.R. Sherfield with the intent to injure or defraud, to find him not guilty." Now, the only evidence presenting the issue of a lack of intent was that of appellant, suggested above, so that the charge in question authorized the jury to determine this issue. True, the charge was not a charge presenting the facts constituting appellant's defense on this line, but it was a distinct charge on the issue of fraudulent intent, and could only have had reference to said evidence on this subject, and the jury could only have so applied it. There being no error in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.