Hennessy v. State

Citations

• 23 Tex. Ct. App. 340
• 5 S.W. 215
• 1887 Tex. Crim. App. LEXIS 82

Syllabus

<p>1. Continuance—Diligence.—Defendant was indicted on March 17, and. his trial was set for the twentieth of the ensuing April. On the eleventh day prior to said day of trial he sued out a writ of attachment for a witness who resided in a distant county, and the return on the writ shows that the witness had removed to the District of Columbia before the writ reached the officer’s hands. No further effort was made to obtain the witness’s attendance or testimony. Held, that these facts fail to show such diligence as entitled the defendant to a continuance, inasmuch as it does not appear that the attendance of the witness could not have been secured by a more prompt procurement of the attachment, nor that his testimony could not have been obtained by deposition.</p> <p>2. Evidence.—Continuance is properly refused when it is apparent that the desired testimony, if adduced, would be neither relevant nor material to the issue in the case.</p> <p>3. Same—Case Stated.—Being indicted for forgery by alteration of an authenticated account against the State for postage stamps, etc., furnished to State senators, the accused (who was sergeant at arms) applied for a continuance to obtain the testimony of certain senators that they received the amount of stamps, etc, charged against them by the accused. Held, that such proof had no relevancy to the issue in the case, and would neither be material nor admissible at the trial.</p> <p>4 Forgery—Variance.—Mere misplacement of the dot belonging to the letter “i” in setting out a proper name, plainly written, in an indictment for forgery, does not constitute a variance. See the opinion of the court in illustration.</p> <p>5. Same.—Indictment for forgery alleged that the account in question was approved by “H. Knittel, chairman on the committee on contingent expenses of the senate.” The instrument was signed UJH. Knittel, chairman on Com. Contg. Exp.” Held, that the discrepancy was not a variance, and it was a question of fact whether the