*1 Fey v. The 435 1916.1 accomplished deceased robbing purpose; killing themselves, half getting divided between proceeds half. other record Taking and Shelton money getting error is stands, require that no shown which we are of opinion either from any single proposition presented of the a reversal judgment whole or from the record. together, them or from all of considered record, error affirmed. judgment no reversible Finding Affirmed. 5, January Reporter.] denied [Rehearing 1916.— Fry v. The State. January No. 3878. Decided Forgery—Indictment—Endorsement—Pleading. 1.— endorse- forging an charged was the the indictment with Where defendant cheek, necessary allege to payee ment of was person sign- possessed authority of the legal efficacy obligation, cheek ing Dreeben v. Following to instrument. purporting the check on its face valid other Texas Crim. cases. 2.—Same—Evidence—Other Transactions. evi- Where, upon permitted introduce in forgery, trial of was the State certain forged, dence was no reversible than the to be there was error, question in the whether the endorse- .being case handwriting,
ment on the and Dugat defendant’s alleged system; forged Following properly limiting testimony. court and other cases. Defendan&wkey;Fractice 3.—Same—Absence District Court. Where, upon forgery, considering trial of some the case for time on a requested agree came discharged into court coul^ verdict, court, defendant, the absence whereupon the instructed verdict, them to retire of their but it further consider from and that judge record that the defendant out on bond remarks of the injurious could have been were not of that character which there reversible error. entirely proper, no Passing Forged Same—Charge of Instrument. Court — 4.— Where, instrument, passing forged trial of evi- upon passing dence authorized the charging forgery, count instrument, the verdict was forged refusing requested charge instructing the error in there was no passing charged defendant instru- count which consider ment. 5.—Same—Evidence—Motive. de- admitting evidence that forgery, Upon trial of possession suppress testimony by getting of the checks attempted fendant based. indictment was on which Testify. Failure Jury 6.—Same—Misconduct —Defendant's new in his motion for trial showed Where, forgery, defendant upon trial failure jury discussed defendant’s case, the reversible same 'was error. Repoets. ['January, Appeal from the District Court Wichita. Tried before below Hon. E. Nieholson. W. a conviction of from
Appeal forgery; imprison- two penalty, years ment in the penitentiary. *2 states the opinion
The case. n & Arnold, Edgar 'Arnold & Scurry, Taylor, Fred Blach Ramsey, Ramsey, indictment: appellant. question insufficiency On id., Munoz 40 Texas v.-State, Rep., 457; State, Crim. Johnson 40 v. State, 605; State, 510; 39 Cagle 109; Lynch id., Millsaps v. 41 id., v. 43 State, Rep., t. v. 34 Texas Rep., 1015; State, S. W. Daud Crim. 628, 460; State, Texas 162 W. v. 72 Crim. Lamb-Campbell Rep., S. 879. Hep., Rep., State, On of other transactions: v. 89 Bink S. W. question 1077;
1075; State, State, Harris 55 v. 89 S. v. Davenport Rep., W. Crim. 469, Texas 117 839. Rep., Rep., W. S. State, On of court’s v. question communication jury: Shipp State, 46; id., 85; 11 Texas Crim. v. 13 v. State, Cowart App., Mapes State, 482, 65 Texas 341; W. Wilkerson v. Rep., Rep., Crim. 145 S. 170; State, 49 Texas 56 195. Washington id., Crim. v. Rep., testify: allusion jury’s to defendant’s failure On question 71 State, 279; State, v. 59 Texas Crim. v. Rep., Portwood Walling id., 447. McDonald, Dis- Attorney Humphrey, Leslie General,
G. G. Assistant the State. On trict A. Kay, ques- P. Martin and John C. Attorney, State, Crim. v. 55 Texas tion of of indictment: Carter sufficiency Texas State, v. Crim. 839; Cheesebourge 114 70 Rep., S. W. 43, Rep., State, 761; 59 Crim. 612, Reeseman Texas Rep., 157 W. v. S. Pep., Texas Rep., Pelton 60 1128; State, 128 Crim. 430, Rep., W. v. S. Rep., 480. Rep., 132 S. W. State, 40 W. other transactions: McGlasson v. S. question On State, W. 933. 503; 81 Rep., v. S. Taylor Rep., in the absence of defendant: of remarks of court On question 811; State, Rep., 192, Rep., 67 Texas Crim. S. W. v. Rippetoe 689: Rep., Crim. 119 S. W. State, Texas Rep., v. Washington W. testimony: McFarland v. S. suppressing On W. 162 S. Rep., 788; Cooper an indictment was tried HARPER, Judge. Appellant conviction forged instrument. The and passing him with forgery ing instrument count charging forgery. follows: is as alteration Fey v. The State. 1916J] Padgett,
«I. B. County, Treasurer of County Young Graham, Texas, No. 3515 10-21-1913. Watson or order One Hundred $154.00, fifty-four J. M. Pay Dollars. & no/100
To the Graham National Bank, County Depository. Padgett, I. B.
(Signed) Treasurer.” County That tho altered instrument said thereon by endorsing Wats'on, name of the J. M. thus the cheek payee, making payable bearer. in this Appellant moves the indictment on the quash ground does not tho indictment instrument, prior
alteration, was instrument an legal possessing efficacy obligation,, there is allegation in that facts showing authority, any, if *3 of I. act as Padgett such, B. and county as issue this treasurer, check the funds of the the contention county, that there being should have that allegation I. B. specific Padgett the duly and qualified treasurer of the acting county county, iSiat the issuance of he said check acted in the of his performance duties under the law—that all the facts which render the county liable- would legally for the amount the of check should have been alleged. affirmatively was not Appellant the name forging changed Padgett but the forging by J. M. Watson his endorsing name on check. the If the check on its face to be issugd check Padgett, by purported county treasurer, Bank, on the National it did, if there were- Graham matters not on the appearing cheek, face of extrinsic would it invalid, render this render would it none the less for forgery appel M, lant to endorse the name of J. Watson on the check. If Watson had in fact received endorsed over to a third he person, check thg be liable to for on its certainly person, cheek face pur ported be a named. valid We do not care to amount taire again, as we so up review exhaustively authorities quite in the ease of Dreeben v. In ease of Rep., 108, Texas Crim. authorities King are also of those two reviewed, eases instrument authority face, instrument, in this make ease, its valid -^ould J. M. It if he endorsed name of Watson thereon. guilty cheek to on its face it is is bear customary by issued Statutes, so so of the Bevised virtue of article who person treasurer elected, it is of a signed duly acting qualified given averments in look for such and no face county, person would a cheek. to admit certain other checks
Appellant contends contended also evidence, forged, had manner in-which it committed this similar forgery; so, if he him, committed did do should by evidence other crimes Eepoets. [January, rule, is the have been admitted. this Usually exception recognized mle is as well as the rule In itself. the statement of facts it is five six some hundred of these other checks evidence, admitted in bills of exceptions complaining the matter it is there were about one hundred and fifty recited similar' is immaterial. of these other checks admitted. number admissible, all agreement If one was then under the admissible, It we record. reads: find “It counsel and it agreed defendant by is admitted that the by
entire bunch warrants purporting by to be issued clerk county Young County and his entire deputies bunch cheeks pur- B. Padgett, County, issued I. Treasurer porting by County Young Bank, and drawn on the Graham National and all the are each genuine warrants, clerk, so by genuine issued the checks' are I. Padgett, of B. drawn him that the ox authority, endorsements checks, back of said E. W. genuine signatures endorsements and of the Fry.” n Thus it is seen that only admission was about made, was, issue left for the decide the endorsement of M. J. forged, so, "Watson and if name? appellant forge Appellant introduced if the name was tending forged, did not At forge it. his instance “I P. testified: J. McKinley seen some of Judge Fry’s seen (appellant’s) handwriting. having From his signature and seen his handwriting, I think having I would know if I were it. handwriting to see I could not ‘J. swear M. Watson’ there is in up Judge Fry’s handwriting. From observation my and experience with Judge I do not Fry’s handwriting, see sim- any ilarity. do not see anything that would impress me that he wrote that name.” He testify, witnesses substance, the same *4 On thing. hand, the other Oglesby J. S. testified for the State h'e an expert accountant; that made a study had of handwriting nineteen He years. into detail as goes to the way he sig- ^identifies natures, and that says in his opinion endorsement,, wrote the appellant Watson,” M. He *J. on the check. also testified he had examined all evidence, the checks introduced in in his opinion “E. FryeW. wrote the endorsements each upon checks” introduced in evi- dence. gave Other testimony witnesses would authorize the jury to believe that wrote endorsements. appellant Thus it is seen the issue was as to drawn whether or not squarely appellant forged the name of J. M. on the check, Watson and all evidence which would tend legitimately to show that he so did do would be The admissible. tend evidence State would show county judge Young County; an account was made out for road work for amount of this check in the J. Watson, M. and it was “O K” by Judge marked Fry presiding judge of the Commissioners Court; it was then presented issued county clerk, who warrant on amount, the treasurer for that gave the treasurer cheek order of J. M. Watson which this payable upon 1916.] v. forgery presented. clerk, This issued warrant by county
the check issued by treasurer, is traced into the hands of appellant, and in addition to the endorsement of “J. has his name M. Watson/’ endorsed thereon, endorsement appellant admitted to be genuine. All the other checks introduced in evidence, issued various people, are shown to have been in the obtained same hear the way, genuine endorsement of appellant. The evidence used and shows where he many cashed of them. The the endorse for the State is that testimony ments made on all the cheeks, the various names are in payees, not, it handwriting appellant, hut whether endorsed himby is shown he passed if not all of them many, and received the proceeds. Thus system shown of accounts for road work presenting the county, more, over two extending years or for which the evidence would justify roads; finding work been done on the in nearly instance every whom issued names persons the road superintendent says by did on road; work persons instances, names such could not be found in in four county, except and in these four instances the men swear did not receive cheeks and them, endorse with .the yet they all endorsed name of the in the person appearing of the check as payee, .face Mr. Oglesby says endorsed handwriting appellant, addition thereto are endorsed “E. W. which endorsement Fry,” appel lant admits to be In our genuine. if there ever was opinion a ease where other crimes became admissible as system show tending this is such case. Such practiced, en able the pass of whether or not wrote the name of J. M. on Watson the check in this case and passed same. would he .It a circumstance tending so. v. Dugat State, 72 Texas Crim. Rep., cited; and cases McGlasson 40 S. 503; W. Taylor v. S. W. course, Of when the State offered this be, proof, appellant should was, permitted offer proof signature none cheeks was in his handwriting. The court in his charge, limited purpose for which such checks could be considered jury, instructed them: “You can consider for any such purpose any of M. cheeks, check, than the Watson J. except (if any) find believe from may evidence, beyond doubt, a reasonable were altered without lawful intent authority Therefore, and defraud.” injure unnecessary give this issue. special charge requested on is made By bill after the appear had been consider-
ing case for some came forty hours, they into court and requested *5 be not they discharged did think they they could agree on —that a verdict. The was not this and appellant present time, at the court in answer to such stated to request the jury: “Gentlemen, all jury trials are attended with This expense. considerable matter has to be it, a The court can not decide jury. decided and it seems to the court that as you it just capable as other deciding any jury. Keports. [Jcmaary, a you together court is not as matter nor keeping of punishment
to a I want to verdict you way. extort don’t try jirom any juror eii^rer a to that he honest, render verdict noiTconsider fair or one does and conscience, and if a is his should return a juror verdict not and Iris honest, consider fair or one that was against he did he conscience, the court would not it if it be might receive knew arrive a further deliberation of this you ease could at some- and other, ask that conclusion or will way retire your verdict.” contends it was Appellant further consider make such remarks to the his This jury to absence. any court of, occurring be such a matter might appellant complain could to the enactment absence, in his of those statute prior provisions him to remain bond until verdict of is- on authorizing returned, to receive the court absence verdict his authorizing himself if absents from the court. A trial intentionally person he on is to should have as much interest a tire do and ease as supposed trial to remain in is his his attendance- judge, duty bond on is out his case. If inten- court away,, walks out of the courtroom and tionally deliberately remains can not should expect delay proceedings court await ’to the courtroom. The remarks pleasure returning above a are not of character that have injurious could been but appellant, to be made when discharged. the jury asked proper think was court submit ample “authorizing We the count instru- appellant passing to the jury charging ment. The was endorsed at and the by him, bank, paid cheek_ their to- require it was custom to whom person bank officials thereon. to endorse endorse- Appellant’s paid check, on the and the court not err ment the last was count, instructing' charges refusing special submitting The verdict consider that count. the count charging forgery. arrested friends It he and some appears appellant on courthouse get possession
went an contention it was being were based—the State’s indictments is On this testimony. visit suppress destroy effort to in which men shooting occurred two been present, shown No effort was made show killed, injured. another hand occasion, murder guilty tried he had -and adjudged guilty in evidence trial gone should further on another be into details No that offense. visit, and the seriousness visit, the purpose than to admissible, and testimony This much effort. limited the properly The court holding. purpose in so not err says, suppression section Wharton, Mr. testimony. circumstance is always testimony prejudicial of pertinent destruction without rational performed as no act of weight; for, of great evidence if it the inference that such leads to naturally motive, *6 v. The State. GILBERT 1916.] in whose to the party power unfavorably adduced would operate were a circumstance is admissible as suppress testimony it is.' Evidence to etc. arrest, flight, evading the same as of guilt only and the brief, discussed in appellant’s Other The only discuss, is the contends necessary deem one we it ease, while failure appellant’s testify discussed the State cites bill, error. case think, The only we presents error is presents Cooper bill holding case- Cooper think the 364. We S. 162 W. dif~ this ease law, wholly but the facts in announces correctly Dodson, Mr. one juror, In this ease the facts in that case. ferent from anybody heard “Q. you whether or testified: State Yes, ? room A. refer failure to testify you Well, they said Q. said. Á. what was did. State I in his own behalf. testify him to right it would be thought they Q. There were three that? A. know who was said you Do Could', Q. the men. out or said I get four but could not up point about failure mention made tell us times heard many you how Q. how- Well, day. About every in his own behalf? A. testify to. like I Well, think occurred? A.' often would you get times time we would day, every near say mighty how many Koland, Mr. testified: Another brought juror, arguing up.’’ “Q. Koland,- case, you. the trial of this state whether or not upon Mr. did not testify refer the fact anybody heard said Oh, say; said ? A. know what they ufiiat I do not they they that he and said got up if he was not could guilty, wasn’t, etc.” not. that the Every testified juryman says who fact heard it once and it was
testify say only was mentioned. Some times. four or five heard mentioned suppressed. Others is reversed and cause- For the indicated the judgment reasons remanded. remanded.
Reversed and Judge. reversal on DAYIDSON, agree ground I stated reversal, believe add there are other some reasons. grounds may details, do not believe either offenses extraneous admitted these thereof should have admitted. Also having matters, counteract was entitled to his witnesses meet and the force of offenses. admitted
S. v. The S. Gilbert No. November 3771. Decided 1915.
Rehearing January denied Imprisonment Venue—Charge of Court. 1.—Raise — Where, 'imprisonment, .¿pon trial of evidence disclosed that false inclosure, twenty-eight line lying of land id one across sections