22 S.W. 408 | Tex. Crim. App. | 1893
Lead Opinion
Appellant was convicted of the offense of fraudulently altering a genuine instrument, and sentenced to seven years in the penitentiary.
The facts in this case are almost the same as proved in the case of Mason v. The State, 31 Texas Criminal Reports, 306, which practically settles all law questions that are raised in this, and which decision we see no reason to disturb. *98
The only question that need be considered is the one going to the sufficiency of the evidence to sustain the conviction. The draft alleged to be fraudulently altered was retained by appellant after he failed to pass it upon the bank of G.N. Dilworth, so the State was compelled to resort to secondary evidence of the fact. It was proved by the cashier of the Galveston bank, that upon the 9th day of January, 1892, he issued, as assistant cashier, a draft numbered 20,481, on Dilworth's bank for $25, and issued no other draft on that day on Dilworth's bank of that number or amount, and that he never issued one for $2500. By Dilworth the State proved, that he declined to pay the draft presented by appellant on the 15th of January, 1892, until he could telegraph to Galveston, but took the date, number, and amount of the draft; that he did not then know the signature of Bergeron, the cashier, but now knows it, and it was the same signature he saw on the instrument; that the draft was a printed form of the bank, with the number 20,481 printed thereon, while the amount was both written and punched. The State further proved by Bergeron, that the draft he issued had the figures 25 punched on it with a machine used for that purpose; that from experiments witness knows that the figures could be raised so as not to be readily detected. By George Schleicher, a cashier in the bank of Otto Buchel, at Cuero, the State proved, that on January 13, 1892, defendant presented a draft on his bank for $2000, drawn by W. L. Moody Co., of Galveston, which he cashed. This draft had the figures (as is usual with such drafts) punched with a perforating machine, but a close examination with a magnifying glass revealed the fact that the two additional cyphers were made with a different machine; the draft, as originally drawn, being for $20 only, and it was raised to $2000.
Appellant's contention is, that the testimony proves that the check on which he was indicted may have been entirely forged and not fraudulently altered. While it would have been better to have added a count for forgery, we can not say that the jury did not have evidence sufficient to reasonably satisfy them that the draft was raised. It was shown to be on a bank check on a printed form, with its consecutive number printed thereon, with the amount written and punched; also that the method of raising was feasible, and not readily detected. A draft actually cashed by appellant was proved to be so manipulated. It was certainly far more reasonable to suppose, that in carrying out their plan of buying small checks of $20 and $25 on inland banks, and raising them, appellant and his partner pursued the plan of raising them by adding ciphers, rather than to carry around a printing press, and probably vignettes of the bank paper they were forging. The judgment is affirmed.
Affirmed.
Judges all present and concurring. *99
Addendum
We have again examined this case at counsel's request, and suggestion that the opinion is based upon a state of facts which did not exist, and are unanimously of the opinion that there is nothing in the motion for a rehearing or in the original brief that requires a reversal.
There was not a single exception reserved to the evidence or the charge of the court, and the special charges requested were not applicable or were not law. The only question in the case was, whether the instrument was forged by alteration of a genuine instrument, as alleged in the indictment, or whether it was forged by the making of an entirely new instrument, and this issue, and appellant's connection therewith, was pressed upon the jury by the third, fifth, sixth, seventh, and eighth subdivisions of the charge, with a reiteration that may have been reversible error, had it not been in appellant's favor. The appellant's counsel, however, insist that the opinion delivered in this case does injustice to appellant, in stating that he presented the forged checks at the Dilworth bank in Gonzales, and at the Otto Buchel bank at Cuero; that in both instances the drafts were presented by Hunter, alias Harris.
The opinion was briefly stating the facts, from the legal standpoint of appellant. It would have been better to have said, "that appellant and his coconfederate, Hunter, alias Harris, having failed to pass the draft in question on Dilworth's bank, retained it, so that the State was compelled to resort to secondary evidence," etc. In counsel's brief, they say, speaking of the nature of this case, "The facts are identical with those of a case of passing a forged instrument, which was decided by the Court of Criminal Appeals, at the last Tyler Term." The case referred to was that of E. Mason v. The State, 31 Texas Criminal Reports, 306, in which this court sustained a conviction against this appellant forpassing a forged check on the bank of Otto Buchel, at Cuero. We are certainly at a loss to appreciate how appellant can in any way be injured by the opinion assuming the fact that he passed the forged check on Otto Buchel's bank at Cuero, and attempted to do likewise at Gonzales, on Dilworth's bank, where it is clearly shown, as it was in both cases, that appellant and Hunter were operating together in carrying on a systematic plan of passing forged checks on country banks. The act of one was the act of both. Indeed, it would have been better to have laid stress upon the fact, that while to Hunter, perhaps from his superior address, was assigned the part of passing the forged checks, it was appellant who remained in the neighborhood, watched, and advised, who handled the satchel, who delivered the checks to Hunter, and received the package on his return from Buchel's bank. It was appellant who, when arrested, took out the bundle of checks (or papers the witness thought were checks) *100 and threw them in the stove. It was appellant who was found with the bulk of the money in his possession. But the question presented for consideration is not whether the check attempted to be passed on Dilworth's bank was forged, but whether it was a partial or entire forgery; and that was the only question discussed in the opinion, which we believe to be correct.
In stating there was sufficient evidence to reasonably satisfy the jury, we did not suppose a construction could be placed upon the language in violation of the elementary rule in criminal law, that the evidence that can reasonably satisfy a jury must exclude a reasonable doubt. The court certainly did not err in refusing the charge that the jury must find the fraudulent alteration of the check was made in Gonzales County before they could convict appellant. The code settles it to the contrary. Code Crim. Proc., art. 206.
The motion for rehearing is overruled.
