48 S.W. 520 | Tex. Crim. App. | 1893
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
The forgery declared is alleged to consist in fraudulently and without lawful authority altering a certain promissory note, in the sum of $300, signed by J.W. Winters and F.B. Winters, by adding thereto the names of J.T. Wade and T.R. Johnson. Appellant contends that the State failed to prove that said note was originally signed, as alleged, by J.W. Winters and F.B. Winters. We have examined the record carefully in this regard, and in our opinion the testimony is sufficient to show that it was so signed, and there is no variance between the allegations and the proof in this respect. True, Durham, the payee of the note, alluded to the original signers thereof as the "Winters boys." The note itself was introduced, and showed to be signed, as alleged, by J.W. Winters and F.B. Winters. It seems to us that, as alleged, this was sufficient proof, especially when same was referred to by the witness Durham as having been signed by the Winters boys. But, in addition to this, J.W. Winters, one of the signers of said note, testified that defendant came to see him and his brother, and wanted them to go on his note, in order to borrow some money from J.J. Durham; that he and his brother signed said note with the understanding that he was to get two other parties to sign the same. He further stated that he and his brother had executed to Durham a new note in place of the note now before the court, and that he and his brother would not have signed the old note, had it not been that appellant had agreed to get two other persons to sign the note. As stated above, we think the production of the original note, signed is alleged by J.W. Winters and F.B. Winters, the indictment not being predicated on the forgery of their names, was sufficient proof of such note so signed; but the additional testimony of J.W. Winters certainly places this question beyond any cavil. *98
Appellant claims there is a variance between, the instrument set out in the indictment and that offered in evidence. No question appears to have been made as to this matter in the court below. The only possible difference in the two instruments, as contained in the record, is that the one set out in the indictment contains "No. _____. Due _____," on the right hand Margin. This is no part of the instrument, and does not constitute a variance.
He also contends that the article "the" occurs in the copy set out in the record before the word "same," in the last line of the note, whereas the article "the" does not occur in the same place in the note as set out in the indictment. We regard this as hypercritical.
Appellant, in brief, complains of the following charge of the court: "If you believe from the evidence that the defendant did not sign the names of J.T. Wade and T.R. Johnson to the instrument described in the indictment, then you will acquit the defendant. You are further instructed that, if you believe from the evidence that J.T. Wade and T.R. Johnson signed their names to said instrument, then you will acquit the defendant." He complains of this charge for the first time in this court, and urges that, notwithstanding no exception was taken to this charge in the lower court, it is fundamental error, and the case should be reversed. If we concede that appellant could bring this matter forward now for the first time, yet we fail to see any error committed by the court in the above-mentioned charge. The contention is that the court deprived appellant of the reasonable doubt, and threw upon him the burden of proving his innocence. The court had already charged the jury that they must find the facts constituting the offense, — among other things, that appellant, without lawful authority, signed the names of J.T. Wade and T.R. Johnson to said note, — and that they must find this beyond a reasonable doubt before they could convict the defendant. And in addition to this the jury were instructed that they could not find the defendant guilty, unless the evidence established his guilt beyond a reasonable doubt, and if they had a reasonable doubt of the guilt of defendant, they would acquit him. We fail to see how the charge complained of deprived appellant of the reasonable doubt as to said defensive matters, when they were expressly told in the charge that they must find beyond a reasonable doubt that said names were signed by appellant to said note without lawful authority. There is nothing in this contention.
Appellant insists that the court having committed an error, in stating the punishment for uttering said forged instrument erroneously, the case on that account should be reversed. The court submitted both counts in the indictment, and gave the imprisonment for both forgery and uttering a forged instrument at imprisonment in the penitentiary not less than two nor more than seven years. This is a correct statement of the punishment for forgery but the statute fixes, the punishment for uttering a forged instrument at confinement in the penitentiary not less than two for more than five years. It will be seen from an *99
inspection of the record that the jury returned a general verdict of guilty, and that the court, in rendering the judgment and entering the sentence against appellant, applied the verdict to the count for forgery. A number of cases in this State have been reversed because the court, in stating the punishment prescribed, charged a punishment different from that contained in the statute punishing the offense. This has been so held even where the maximum punishment stated by the court was less than that prescribed by the statute. We would observe here, however, that we can see no reason or common sense for the reversal of it case where the court has given the correct minimum punishment prescribed by statute, and has given a less maximum punishment than fixed by law. Certainly in such a case the charge will inure to the benefit of defendant. In this ease, however, the court gave a greater maximum punishment than that prescribed for uttering a forged instrument. The jury, however, did not find a greater punishment, but found the minimum prescribed for that offense, and also for the offense of forgery. The objection to this charge was raised for the first time in the motion for new trial. Our recent statute on the subject provides that the charge must be excepted to, and must appear to have operated to the prejudice of appellant. We fail to see how the charge in question affected appellant injuriously. This same question, however, involves another question raised by appellant; that is, the power of the court to apply the finding of the jury to the count for forgery. If the court had authority to make this application, and the charge of forgery was correct as to punishment, then an incorrect charge on the count for uttering would be immaterial. Appellant raised this objection by a motion in arrest of judgment, and he thus questions the action of the court in applying a general verdict of guilty under both counts in the indictment to the count of forgery. It will be conceded that forgery and uttering a forged instrument are two distinct offenses, and the punishment different, as to the maximum prescribed. If we follow the rule heretofore laid down by this court on the subject, we must uphold the action of the court. See Southern v. State, 34 Tex.Crim. Rep.; Carr v. State, 36 Tex.Crim. Rep.; Rosson v. State,
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled at the Dallas term, 1899, without a written opinion. — Reporter.]