E. Sherwood v. The State, 42 Tex. 498

Gould, J. The original indictment and original check, which last is alleged to have been improperly admitted in evidence, because of its variance from that set out in the indictment, have both been sent up with the record for our inspection. ' The alleged variance has not been specifically pointed out, and a careful comparison of the two instruments has not enabled us to detect it. The check appears to have been correctly set out in hcBo vería, and was properly admitted in evidence. It is said that the court erred in charging that if defendant got the check from another, it devolved on him to show it.

There is nothing in the evidence tending to show that the defendant innocently obtained the check from some third person. The evidence raises no such issue. The charge instructed the jury that knowledge on the part of defendant of the worthlessness of the check was a material element of the offense. We think, that the entire charge made it plain to the jury, that without a fraudulent intent had been shown beyond a reasonable doubt, the offense was not made out. It was, perhaps, unnecessary to give any instruction on a defense wholly unsupported by anything in the evidence.

The course of the argument below may have called forth the instruction, which, at all events, was not, under the evidence, erroneous. It appears, by bill of exceptions, that at the request of defendant, one of the witnesses was placed under the rule, that after they had all been examined, being all for the State, the court allowed the District Attorney time to send for another witness, and allowed that witness to be introduced, he not having originally been sworn and placed under the rule, and not having been in court.

There is nothing in the Code forbidding the introdnotion of other witnesses than those placed under the rule. On the contrary, the Code authorizes the introduction of witnesses at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice. (Paschal’s Digest,

Article 3046. See also Articles 3047-8-9.) We think the admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is a matter addressed to the sound discretion of the court. (1 Greenleaf,

Section 432; 1 Bish. Cr. Pr.,

Section 518.) We must presume, until the contrary appears, that discretion to have been properly exercised. It appears that the witness had not been in court so as to hear the testimony, and it does not appear that he had heard or had any opportunity of hearing the purport of the previous testimony from any other source. There is nothing in the nature of his evidence, or in the circumstance of its admission, to justify us in holding that the discretion of the court was not properly exercised in support of the due administration of justice. The judgment is affirmed. Affirmed.