22 S.W. 974 | Tex. Crim. App. | 1893
Lead Opinion
Appellant was convicted of the offense of forgery, and his punishment assessed at three years in the penitentiary, from which he appeals.
1. The appellant complains, that the court erred in the tenth paragraph of his charge, to the effect, that if the jury believed from the evidence that defendant signed the name of S.R. Kone to the note under an authority which he had good reason to believe, and actually did believe, to be sufficient, then defendant would not be guilty, upon the ground that the court required them to believe that defendant thought he had authority before they could acquit him. The charge is correct. It is in the very language of the code. Penal Code, article 441. But a majority of the court believe that the special requested charge should have been given, as it constituted the turning point of the case.
2. But it is insisted, that the court should have further charged on a reasonable doubt as to this particular phase of the case, and the general charge on reasonable doubt was not sufficient. The case of Williams v. The State, 24 Texas Criminal Appeals, 346, is relied upon as sustaining the contention of appellant. While there are some expressions in the opinion supporting the position of appellant, an examination will show that that case was reversed because of a failure of the court to charge upon the question of authority to execute the instrument, and not on the failure to charge on reasonable doubt. In McCulloch's case, 23 Texas Criminal Appeals, 636, the law is declared settled, that "as to reasonable doubt, if the charge applies this to the whole case, this will satisfy the demands of the law;" citing King's case, 9 Texas Cr. App., 558; Webb's case, 9 Texas Cr. App., 514. See, also, Powell's case, 28 Texas Cr. App., 398; Thurmond's case, 27 Texas Cr. App., 371. The court did not err in failing to charge on reasonable doubt as to this particular phase of the case.
3. The court did not err in overruling a motion for new trial, so far as based upon the ground of newly discovered evidence. It is difficult to see how the fact that appellant had signed two notes with Sam R. Kone's name, instead of one, could have been newly discovered evidence, or the fact that one of the notes had been paid, and Sam R. Kone had received the money with which he paid the note. Why could not this testimony have been ascertained by ordinary diligence? If the testimony adduced on the trial of the cause had been, in our judgment, sufficient to sustain the verdict, we should see no reason to reverse on this ground, nor upon any ground set forth in the assignment of error, except the failure to give the special charge, as aforesaid.
4. Upon the facts of this case, after a careful and long examination thereof, we feel unable to sanction the verdict, at least until certain other facts are ascertained. The charge is a forgery of the name of S.R. Kone to a promissory note for $4200 by Henry D. Kone and the appellant, who *239 desired to use, and did use, the note in organizing the Bell County National Bank, in 1890. Henry D. Kone is the brother and appellant the brother-in-law of S.R. Kone. It seems to be clearly proven that S.R. Kone was in fact willing for them to use his name in organizing the bank. The only difference between the State and the defendant was, the State claimed S.R. Kone said they (appellant and Henry D. Kone) must notify him when they needed his assistance, and defendant claimed that S.R. Kone said they must notify him when they used his name. Upon this difference rests the State's case of forgery, resting oil a verbal message sent through his brother, and doubtless sent after a full statement of the proposed plans between the two brothers. When we consider the close family relationship, intimacy, and business methods shown to exist between the parties, also the unquestionable confidence of S.R. Kone in their financial standing and business capacity, shown in his willingness to lend his name and credit for some $5000 on their simple request, we are strongly impressed with the uncertainty of there being any forgery in this case; even conceding that S.R. Kone's statement was not strongly shaken by Miss McCay.
Where was the necessity for the forgery? Had it been shown that no request had been made of S.R. Kone for the use of his name; or that he had, on being requested, declined to permit it; or even if he stated that it was doubtful whether he could do so, a different case would be presented. But there seems to be no question of the ability or willingness of S.R. Kone to assist them in the project of organizing the bank by the use of his name, or in any other manner. It was further shown, that the note was executed, the bank organized and continued in operation for two years, and the note in question was renewed. It is further shown, that the bank in question failed, and S.R. Kone was sued upon his note by the receiver of the bank. It is strongly suggested by the record in this case, that S.R. Kone was suddenly presented with the note for payment at a time when he was financially pressed and unable to pay it; that in order to save his credit, he interposed the plea of non est factum to defeat the suit brought against him, perhaps without considering the possible consequences to his brother and appellant.
Upon the trial of this case, S.R. Kone was confronted apparently with the alternative of the falsity of his own plea or the forgery of appellant and his brother. Circumstances may, however, have justified the plea without forgery being the result. It is not every signing another man's name without authority which constitutes forgery. There must inhere in the act an intent to injure or defraud. If there is a reasonable and honest belief that the signature will be approved, there can be no forgery. Penal Code, art. 441. Again, if the statement made in the clerk's office by S.R. Kone during the trial is considered, it would seem there were two notes instead of one. That S.R. Kone received the money upon *240 one, and paid it upon being pressed by the receiver. It would seem that he received the money without protest or question. The pertinent inquiry is, if that note was made without his consent, expressed or implied, why was he accepting money on it instead of repudiating the transaction?
Mr. Bishop says, that where a person whose name is alleged to be forged does not, on being notified of the use of his name, directly repudiate it, it ought to constitute before the jury a considerable obstacle to conviction; because such conduct gives rise to a strong presumption that the accused acted with the tacit connivance, if not open consent, of the other. 1 Bish. Crim. Law, sec. 599.
The judgment is reversed and cause remanded.
Addendum
The issue in this case, made so by the relationship of the parties and their manner of dealing with each other, was whether appellant had reasonable grounds for and did believe that he was authorized to use the name of the prosecutor. We are of the opinion, that the special requested instruction should have been given. If not strictly correct in its application to the facts, it was sufficient to call the attention of the court to this phase of the evidence.
Reversed and remanded.