Offense, knowingly passing as true a forged instrument; penalty, two years in the penitentiary.
The vice-president of the First State Bank of Ben Franklin testified that on the date alleged in the indictment he cashed a check for the appellant in the sum of $190.00, which was signed by Robert Carson and drawn on a bank of a neighboring town. The instrument was proven to be a forgery. Appellant's defense was an alibi.
Appellant presented his second application for a continuance, alleging the absence of a witness by whom he could prove certain facts. The statement of facts shows substantially the same testimony was given on the trial by other witnesses. This being a subsequent application for a continuance, the discretion which the law vests in the trial court in denying a continuance under these circumstances has not in our opinion been abused and his action will not be disturbed. Fisher v. State, 4 Tex.Crim. App. 181; Branch's P. C., Sec. 322, and authorities there collated.
Appellant filed a written motion to quash the indictment herein, among other things because "the indictment does not show to what Court the indictment is returnable, there being two District Courts in Delta County, Texas"; and further because no record was entered in the minutes of the District Court regarding the presentment of the indictment by the grand jury which in any manner gave the name of the defendant. The order showing the presentment of the indictment appears in the transcript as follows:
"Be it remembered that on this the eleventh day of January 1929, the Grand Jury, for the January term of the District Court of Delta County, Texas, of the 8th Judicial District of Texas, came into open court in a body, a quorum of the members thereof being present and through their foreman delivered to the Judge presiding, the following bills of Indictment, which the Court ordered filed:
The State of Texas } Forgery and passing a vs. No. 2653 } forged Instrument."
We think the order sufficiently shows the Court to which the indictment was returned. *Page 3
It is contended that because the defendant was on bail his name should have appeared in the order of presentment by virtue of the language contained in Art. 394, C. C. P. The order identifies the indictment, it appearing that the number of same is given, together with the character of the offense, which is exactly the same as the one on which accused was tried. This was one of the purposes of the requirements contained in Art. 394, and in our opinion the order is a substantial compliance therewith. Lynn v. State, 13 S.W. 867; Price v. State, 104 Tex. Crim. 257.
Of appellant's remaining bills we deem it necessary to notice only bill of exception No. 3, which presents as error the action of the Court in permitting Mr. Miller, the banker, who was the only witness present at the time of the alleged commission of the offense, to testify that when he went to the calaboose in Ladonia to identify the defendant that the Deputy Sheriff stated to witness that "he has the negro," the party who forged the check, and pointed out the defendant as the party to said witness Miller. While the statement was perhaps somewhat improper, considering the record as a whole, we do not think it could have materially harmed the appellant. The jury will be presumed to have ordinary intelligence and they must have known that this officer was not attempting to identify the appellant as the man who committed the offense, but only was referring to him as the man who had been arrested, charged with the commission of the offense.
No errors requiring a reversal appearing in the record, the judgment will be affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.