(238 S. W.)

of a repair gang working on the tram rail- where the parties were, but before he road connected with the mill. Deceased was reached them deceased had secured a stick, mill foreman. R. M. Eagle was superintend- and Eagle saw it upraised, and the parties ent of the entire plant, having general super- were clinched at that time. When Eagle got vision of the mill, tram railroad, timber, and to them appellant had already cut deceased everything in connection with the plant. The in two places, and was in the act of striking homicide occurred on Monday morning. The again with the knife when the witness got mill proper had been shut down for a few hold of him and pulled him loose from dedays on account of some breakdown, and in ceased. Appellant had been struck on the making repairs it was necessary to do some head with the stick, and was bleeding at this concrete mixing. On Sunday deceased need-time. Deceased died four days after having ed some additional shovels for this work, and received the wounds. In a dying declaration at the direction of Eagle had sent one of his he stated that after they went under the mill hands to the railroad tool house and gotten house he again told appellant to send the extra two shovels. On Monday morning when ap- hands up to the mill, and he would give them pellant started his gang to work he missed work during the day, but that appellant rethe shovels, and was told by one of his hands fused to do this, and stated he would turn that some one had come to the tool house on in the time of the hands, and would also reSunday and gotten them. It is not made to port him (deceased) to the office, whereupon appear from the record that appellant at this deceased told appellant that "he could say time knew of the superintendent's authoriza- too much about that." He claims that at tion of the deceased to get the shovels. this time appellant drew his knife and adWhen appellant came to the mill on Monday vanced upon him, and that he (deceased) remorning looking for them, deceased told him treated and got hold of a stick, but that aphe had the shovels, and needed them about pellant closed in on him, and was too close the repair work so the mill could be started for him to use the stick with any effect or up. Appellant insisted that he needed the prevent appellant from cutting him. Appelshovels, as he had five men and only three lant claims that deceased was the aggressor; shovels. Deceased told him to send his two that he secured the stick and advanced upextra men to the mill, and he would give on him (appellant) and struck him with the them work there during the day, but appel- stick three or four times over the head belant declined to do this. This conversation fore he (appellant) ever cut or attempted to occurred on the outside of the mill, and was heard by several witnesses, all of whom tesThe foregoing is substantially all of the tified that at the time neither of the parties evidence introduced upon the trial. The isappeared to be mad, except one who says appellant seemed to be out of humor about the sue of fact was submitted to the jury in an shovels. Both appellant and deceased went appropriate charge on self-defense, and the from the point where the conversation first jury declined to accept appellant's version. occurred under the mill and several witness- The fact that appellant was not supported es say the next thing that attracted their at- in his statement by any of the eyewitnesses, tention was appellant saying, "Yip! yip!" but that all of them put appellant in the and, upon looking, they saw appellant with wrong as being the aggressor in the difficulty, his knife open, advancing on deceased, who was his misfortune. was backing away. Deceased backed 10 or 12 feet with appellant pursuing him with the drawn knife. Mr. Eagle, the superintendent, did not hear the conversation between the two with reference to the shovels, but when he appeared upon the scene he saw de ceased backing away from appellant, who was following him up with his knife drawn. Mr. Eagle says that he heard deceased say to appellant, "Yonder comes the superintendent; let him settle it." Immediately after this remark from deceased they backed out of Eagle's sight behind some lumber under the mill. Eagle and all of the witnesses agree that at the time deceased was backing away from appellant deceased was unarmed. the verdict of the jury. Eagle went immediately under the mill to

cut deceased.

While the jury inflicted the severest penalty known to the law, yet we are unwilling to say they were unauthorized in doing so. They saw the witnesses and heard them testify, and were justified in reaching the conclusion that appellant became angry because the shovels had been removed from the tool house, and that, notwithstanding deceased had appealed to the superintendent, who was approaching, to settle the matter as between them, appellant declined to do so, and pursued deceased and killed him for no other reason than appears from the record. Under this state of facts we do not feel disposed, nor would we be authorized, to disturb

The judgment of the trial court is affirmed.

BEDFORD v. STATE. (No. 6695.)

(Court of Criminal Appeals of Texas. Feb. 22,
1922. Rehearing Denied March 15, 1922.)
1. Forgery28 (4)-Motion to quash where
charging part of indictment called forged
trust "deed," a deed, properly overruled.

Where, in the charging part of an indictment, the instrument alleged to have been forged was called a deed, but as set out in hæc verba it was a deed of trust, a motion to quash addressed to the alleged contradictory recital was properly overruled; a trust "deed" being a deed within the definitions (citing 2 Words and Phrases, First and Second Series, p. 1919). 2. Criminal law 598 (2)—On facts showing lack of diligence in locating witness, refusal

of continuance not error.

Where an indictment was returned October 30, 1920, and no subpoenas were issued or applied for until July 1, 1921, and process for defendant's witnesses was returned unserved July 5 and July 8, but defendant located the mother of one of the witnesses on July 15, from whom he expected to learn where witness was, but no further effort was made before trial on July 18, there was such lack of diligence it was not error to deny continuance.

3. Criminal law 597 (1)-Where absent witness' testimony would not have been believed, no error in refusing continuance.

Where the testimony expected of an absent witness appears so contrary to that given by unimpeached witnesses and so impossible of truth that if the witness were present his testimony would not be believed, there was no error in refusing continuance.

On Motion for Rehearing.

4. Witnesses-Right of compulsory process for witness not a matter of discretion. The right of compulsory process for witnesses is of the Constitution, and its issuance is not a matter for the discretion with the trial court, and one who fails to follow the requirements of Vernon's Ann. Code Cr. Proc. 1916, arts. 525-545, on witnesses and the manner of enforcing their attendance, must abide by the consequences.

5. Criminal law

603(11)—Statement, in application for continuance, that defendant made diligent inquiry to locate witness, a conclusion.

The statement, in a motion for continuance, that defendant made diligent inquiry to locate a witness, was a conclusion; a mere affirmation of diligence not being sufficient, but the facts

must be set forth showing the diligence.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

D. L. Bedford was convicted of forgery, and he appeals. Affirmed.

Green & Boyd, of Houston, for appellant. E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J. Appellant was convicted in the criminal district court of Harris coun

ty, and his punishment fixed at five years in the penitentiary.

[1] The conviction was for forgery. In the charging part of the indictment the instrument alleged to have been forged is called a "deed." It is set out in the indictment in hæc verba, and shows to be a deed of trust. A motion to quash was addressed to this alleged contradictory recital of the indictment. It was properly overruled. That a written conveyance of land conveys the interest of the grantor for the purpose of securing a debt would not prevent its being a deed within the definitions. 13 Cyc. p. 519; Lockridge v. McCommon, 90 Tex. 234, 38 S. W. 33; 2 Words and Phrases, First Series, p. 1919.

[2] The only remaining question is the refusal of appellant's request for a continuance. Two witnesses, Maxie and Blocker, were absent. No diligence is shown. The indictment was returned October 30, 1920, and no subpoenas were issued or applied for until July 1, 1921. This appears to be appellant's first effort to obtain the testimony of said witnesses. Subpoena for Maxie was issued to Harris county, for Blocker to Navarro county. Process for both was returned not served; that for Blocker being returned on July 5th, and that for Maxie on July 8th.

No alias process was secured. No reason is stated in the application for failing to further search for Maxie. It is stated that upon the return of said subpoena for Blocker. appellant made diligent inquiry as to his whereabouts. This is but a conclusion. It is further stated that on July 15th appellant located Blocker's mother at Cuney, Tex., and that he expects to learn from her where said witness is. No effort appears to communicate with said mother between July 15th and 18th, the date set for trial. Same might have resulted in locating Blocker and securing, his presence. This is clearly not diligence. Vernon's C. C. P., p. 307, for collation of authorities; Yelton v. State, 75 Tex. Cr. R. 38, 170 S. W. 318; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596.

[3] The refusal of the continuance was made a ground of the motion for new trial. When so presented there arises the added questions of the likelihood that the absent witness would have testified as stated in the application for continuance, and also the question as to whether such testimony be probably true and likely to effect a result different from that attained. The testimony expected from Blocker appears so contrary to that given by unimpeached witnesses, and so impossible of truth, if theirs be true, as to seemingly justify the conclusions, if said witness was present on the trial he would not have given the testimony desired, and

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(238 S.W.)

that, if present and so testifying, it would | other way save the statement thereof in his not have been believed. motion for rehearing, has this matter of fact

Finding no error in the record, the judg-been substantiated here. We judicially know ment of the trial court will be affirmed.

recognize the correctness of the proposition that when in doubt as to diligence in such cases, such doubt is usually resolved in favor of the accused, and that this is specially true of the first application for continuance. Phillips v. State, 50 Tex. Cr. R. 128, 98 S. W. 1051; Hardin v. State, 52 Tex. Cr. R. 239, 106 S. W. 352; Simmons v. State, 58 Tex. Cr. R. 574, 126 S. W. 1157.

of no such rule, nor did appellant apply in due season for process and make the refusal On Motion for Rehearing. of same the subject of a bill of exceptions. [4, 5] It is earnestly insisted that diligence The record before us speaks only the facts to obtain the testimony of witness Blocker as set out in our opinion, and we are comwas shown, and that the continuance because pelled to adhere to the utterances of the of his absence should have been granted. It record before us as controlling, and we are is stated in the motion for rehearing that forced to conclude that same shows such lack the failure to obtain process for said witness of diligence in the matter of obtaining probetween the time of the return of the indict-cess for said witness as called for a refusal ment in October, 1920, and July 1st follow- of the continuance under discussion. We ing, was through no fault of the appellant, but resulted from the existence of a rule of the criminal district court of Harris county to the effect that no process should issue for a witness till the case was set for trial. If this matter were properly before us, we would hold that the lower court had no power to make such rule. The district judge would seem to be in no position to restrain the acThe correctness of our conclusion that a cused from applying for process to the clerk of the court, whose duty it would be upon reversal should not be granted unless we application to issue process. The right of were impressed with the belief that had the compulsory process for witnesses is of the absent testimony been at hand a verdict Constitution. Roddy v. State, 16 Tex. App. more favorable to appellant would likely 502; Homan v. State, 23 Tex. App. 212, 4 have resulted is affirmed in Browning v. S. W. 575. Its issuance is not a matter for State, 26 Tex. App. 432, 9 S. W. 770; Boyett the discretion of the trial court. Edmondv. State, 26 Tex. App. 689, 9 S. W. 275; son v. State, 43 Tex. 230. The statutes are Peace v. State, 27 Tex. App. 93, 10 S. W. plain in their requirements (see articles 525 761; Massie v. State, 30 Tex. App. 64, 16 545, Vernon's C. C. P.), and one accused of S. W. 770; Millirons v. State, 34 Tex. Cr. R. crime who fails to follow their direction 12, 28 S. W. 685. Appellant claimed that his must abide the consequences. Skipworth v. absent witness Blocker would swear that he State, 8 Tex. App. 135. The process issued was present when one John Connor requested on July 1, 1921, for Blocker was returned on appellant to prepare certain notes and a deed July 5th not served. The date of the setting of trust, and that said witness knows that of the trial was July 18th. In our opinion appellant did prepare a deed of trust and we stated that what was said in the applica- notes, and, being called away to Goose Creek, tion for continuance to the effect that appel-placed the papers he had prepared near a lant made diligent inquiry concerning the cash register and left them there, saying whereabouts of said witness between July 5th and July 15th was but a conclusion. Appellant complains in his motion of this statement of ours. A mere affirmation of diligence is not sufficient, but the facts must be set forth showing such diligence. Giles v. State, 66 Tex. Cr. R. 63S, 148 S. W. 317; Stephens v. State, 69 Tex. Cr. R. 437, 154 S. W. 996.

Reverting to the matter of the existence of a rule of the trial court refusing the issuance of process till causes have been set for trial, referred to in appellant's motion, we observe that this is not properly before us. If appellant relied on such rule as any sort of excuse for his failure to procure process for his witness to the next term of court after the return of the indictment, the facts justifying such reliance should have been authenticated by the trial court in some way so that we might have considered such matter. By no bill of exceptions nor any qualifications to any bill of exceptions, nor in any 238 S.W.-15

that he had filled out the acknowledgment on the deed of trust for one Smallwood to sign. An inspection of the application shows that it is not stated that this witness would swear that said papers were the alleged forged papers, nor that appellant did not in fact fill out and sign Smallwood's name to the notes and deed of trust; nor does appellant undertake to place in the mouth of said absent witness any testimony as to what became of said papers later. The forgery was of the name of one Miles Smallwood to a deed of trust. Smallwood denied the execution of the instrument, and further testified that after he learned of such forgery he asked appellant how he came to sign his name thereto, and was informed by the latter that he had expected to pay off the notes and take the matter up before Smallwood learned of it. The witness Connor testified that he received the alleged deed of trust from appellant fully prepared and executed and delivered same to Armstrong, who ad

vanced the $250 involved. This money Con- [verse and dismiss the 'instant prosecution, nor said he delivered to appellant. Arm- and it is so ordered. Francis v. State (Tex. strong testified that based on said papers | Cr. App.) 233 S. W. 580; Petit v. State. (Tex. he loaned $250 for a client, which money Cr. App.) 235 S. W. 579.

CASTON V. STATE. (No. 6734.)

he gave to Connor. Mr. Russell, cashier of the First National Bank of Houston, swore that the signature of Miles Smallwood to the deed of trust was written by the same party who wrote said name in the body of the instrument and in the acknowledgment. This fact was not controverted save by the (Court of Criminal Appeals of Texas. March testimony of appellant. These facts seem to so completely negative and contradict any conclusion of lack of guilt based on the testimony, that we were led to observe that, if the testimony of Blocker as set out in the application had been present, it would not likely have produced a different result.

So believing we conclude that the case was correctly decided, and appellant's motion for rehearing will be overruled

LATTIMORE, J. Appellant was convicted in the district court of Bell county of possessing equipment for the manufacture of intoxicating liquor, and his punishment fixed at three years in the penitentiary.

That feature of the Dean Law (Acts 36th Leg. 1st & 2d Called Sess. [1919] c. 78), making penal the possession of equipment for the purpose of manufacturing intoxicating liquor, having been repealed by its omission from the amended sections of said statute passed by the First Called Session of the Thirty-Seventh Legislature (Acts 37th Leg. 1st Called Sess. [1921] c. 61), under the numerous authorities we are compelled to re

8, 1922.)

Criminal law 1099 (10)-Statement of facts to be considered on appeal must be authenticated by judge's approval or attorneys' agreement.

A purported statement of facts to be considered on appeal must be authenticated by agreement with the attorneys or approval of the trial judge.

(Court of Criminal Appeals of Texas. March 8, 1922.)

Criminal law 1144(17)—Presumption in favor of judgment's correctness.

The proceedings appearing regular, and no statement of facts or bills of exception accompanying the record, all things must be presumed in favor of correctness of the judgment.

Appeal from Williamson County Court; F. D. Love, Judge.

C. J. Sandstrom was convicted of keeping a bawdyhouse, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J. Conviction was under article 500, Vernon's P. C., charging appellant with keeping a "bawdyhouse." Punishment

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(238 S.W.)

was assessed at a fine of $200 and 20 days | 4. Jury in jail.

No statement of facts or bills of exception are brought forward. The motion for new trial raises only the question of the sufficien- open court and testify to the facts on which cy of the evidence, and in its absence pre-affidavit, and file it with the clerk as provided he bases his exemption or make a written sents nothing for review. The proceedings by Vernon's Ann. Code Cr. Proc. 1916, art. appear regular, and in the condition of the record all things must be presumed as to the correctness of the judgment.

3. Criminal law 11661⁄2 (5)-Service of correct list of jurors on defendant, and postponing trial one day thereafter, makes error in return of sheriff on venire writ immaterial. In a prosecution for murder, where the 9. Criminal law 595 (6)-Refusal of consheriff in his return to the special venire writ gave a list of jurors summoned, but left blank the space corresponding with the names and number of three, of whom one attended, another filed an affidavit of exemption, and the other was out of the county and not served, a delay of one day and serving on defendant a correct list of the jurors summoned, as required by Vernon's Ann. Code Cr. Proc. 1916, art. 672, made the irregularity in the return to the writ immaterial.

Under Vernon's Ann, Pen. Code 1916, art. 1143, making admissible proof of threats when one accused of homicide justifies on the ground of self-defense, in prosecution for murder, where there was a direct conflict as to whether deceased made a hostile demonstration toward defendant, refusal of continuance to enable defendant to get a witness, by whom he expected to prove that deceased had tried to get

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