143 S.W.2d 775 | Tex. Crim. App. | 1940
Lead Opinion
The offense is forgery. The punishment assessed is confinement in the State penitentiary for a term of two years.
Appellant first complains of the action of the trial court in declining to sustain his motion to quash the indictment because,
Appellant has a number of bills of exception in the record a great number of which are qualified by the trial court. However, in the absence of a statement of facts we are unable to appraise the same. Vernon’s Ann. Tex. C. C. P., Vol. 3, Art. 760, note 6 and cases cited thereunder.
Finding no reversible error in the record, the judgment of the trial court is 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.
Rehearing
ON MOTION FOR REHEARING.
Appellant again complains of the trial court’s action in al
We do not see what reason, if any, the said attorney could have had in questioning the jury relative to the operation of the enhancement statute. The jury had naught to do with affixing such enhanced punishment in the event of a second conviction. Had the trial court submitted all the counts in the indictment to the jury, and had their verdict been predicated upon the third count therein, they would only have been required to find as to the question of guilt, the amount of punishment being a matter of law for the court to have attended to. See Harbert v. State, 124 S. W. (2d) 1005; also see Art. 62, Penal Code.
It is worthy of note that the trial court submitted the first count in the indictment alone, which charged the act of forgery, and also instructed the jury to not consider the other two counts in the indictment for any purpose. We also note from bill of exceptions No. 10 that the appellant made no objection to the purported statement to the jury on their voir dire qualification relative to appellant being charged as a second offender until the trial court was preparing to read his charge to the jury, at which time the appellant objected to such charge, we presume orally, because same did not so charge the jury not to consider the statement made to them by the district attorney relative to the alleged second offense. It is also worthy of note that on January 8, 1940, the date of the trial of this case, appellant filed his objections in writing to the court’s charge. Nowhere in said objections is there mention made of any objection or exception thereto because of its failure to charge as complained of in bill No. 10, which bill we find to have been filed on March 16, 1940. The statute, Art. 658, C. C. P., requires that all objections and exceptions to the court’s charge shall be presented in writing, distinctly specifying each ground of objection. We do find in the record such a document, containing nineteen paragraphs, objecting and excepting to the court’s charge, but nowhere therein do we find set forth the objection contained in bill No. 10.
The purpose of requiring the filing of such objections in writing is to call the matter to the trial court’s attention and give it opportunity to correct the charge if found to be in
We further observe that this bill is incomplete as an objection to the statement made by the district attorney because the same does not show an objection thereto, but is entirely predicated upon the proposition of the court’s failure to charge the jury not to consider such statement.
It is also to be noted that the jury awarded appellant the lowest penalty affixed to the offense of forgery, and although the conviction must have been had on circumstantial evidence, we do not think the unwarranted pleading, alleging forgery and burglary to have been offenses of a similar nature, would have been sufficient to have caused a jury to have unfairly convicted this appellant; nor do we think that the mention of such a prior conviction by the district attorney could have had such a great weight with such jury that it caused a conviction herein regardless of testimony. We have not been aided by a statement of facts herein, and are forced to gather but meager ones from the bills of exception, in which we do find that appellant obtained three blank checks on the Marlin National Bank from one Baughn in a store, and he and one Lloyd Fulton went back in the store with these blank checks; soon thereafter Fulton shows up with three forged checks, and cashed them. Fulton and appellant then rode out of the town together. We do not know what other or further facts were presented to the jury in the absence of such a statement. We find that the trial court charged on the law of principals, and it seems to us that the jury had the right to say that Fulton and appellant were acting together in the making of these forged instruments in Baughn’s store, and that appellant was actively engaged therein as a principal. We can go no further in the facts on account of appellant’s failure to furnish us with a statement thereof.
We do not feel justified in penalizing the State because of the reading of a defective third count in the indictment to the jury, but not submitted to them by the court, unless we are convinced that such a procedure operated to cause the loss of some right to the appellant. To do so would eventuate in a reversal in every instance in which the State might fail in its proof of an alleged second offense, even if proper to plead but not susceptible of proof at such time, although pleaded in good faith. Such a rule would be an unfair burden placed upon the exigencies of a trial.
We overrule the motion for a rehearing.