44 S.W. 1091 | Tex. Crim. App. | 1898
Appellant was convicted of passing as true an alleged forged instrument in writing, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
Appellant filed a plea setting up former acquittal, and alleged that it was the same transaction for which he was being prosecuted in this case. On motion, this was stricken out, and appellant reserved his exceptions. The acquittal, as shown by the proceeding, was upon an entirely different note from that set up in this prosecution, and the court did not err in striking out the plea. The other note upon which appellant was acquitted, it is true, was deposited with the prosecutor as security in the same transaction as the note upon which this prosecution is based, and was security for the same debt. But the note itself was a distinct and different note, and the passing of said note, though at the *82 same time and in the same transaction, was not susceptible of proof, as being the same act as the passing or uttering of the note 'upon which this indictment is predicated. The other note may have been a genuine note, not a forgery. His acquittal as to that transaction could not operate as a bar to a prosecution in the present case.
Appellant insisted that there was a variance between the proof and the allegation as to the name signed to the alleged forged note. Appellant claimed that it was Delong, and the indictment stated the name Dehong. Appellant testified that the party's name, as signed to it, was Delong, and not Dehong. Whatever there was in this question of variance, appellant had the full benefit of the testimony in the charge of the court, as the jury were instructed, if they believed the name set out in the indictment was Henry Delong, and not Henry Dehong, to acquit the defendant. As appellant insists that the name signed to said note is Delong, it might be well that a new indictment be presented, with a count setting up the name as Henry Delong, as it appears the note may be read either Henry Dehong or Henry Delong. In either event, the proof of the State tends to show that the signer of said note was a fictitious person.
On the trial of the case appellant requested the court to give a special instruction presented by him on circumstantial evidence. The court refused this charge, and stated as a reason therefor "that he did not think the case required a charge on circumstantial evidence; and because the case was closed, the jury instructed, and retired to consider of their verdict, about 4 o'clock p. m., on December 21st, and the requested charge was presented at 9 o'clock a. m. on December 22d, while the jury was still deliberating upon the case." The court's charge contained no charge on circumstantial evidence. This failure and refusal of the court to charge on circumstantial evidence was brought forward in appellant's motion for a new trial. This brings up the question whether or not the evidence was such as to require a charge on circumstantial evidence. It is urged on the part of the State that the act of passing the alleged forged instrument was proven by direct and positive testimony, and although the forgery of said instrument, and that appellant knew when he passed it that it was forged, was proven by circumstantial testimony, this did not constitute the case one of circumstantial evidence, alone. It may be conceded that the case is not one consisting of circumstantial evidence atone; nevertheless it occurs to us that the gravamen or gist of the offense here does consist of circumstances. Indeed, the main inculpatory facts are proved by circumstantial evidence. In the offense of passing a forged instrument, an essential ingredient thereof is that such instrument was forged, and that the utterer knew that it was at the time he passed it. The mere passing of an instrument amounts to nothing unless the other essential elements be established, to wit, the forgery and the knowledge on the part of the utterer. These are the main or essential facts to be proved, and, where they are established alone by circumstantial evidence, a charge on that subject, *83 when requested, should be given, and a failure to charge, when properly excepted to, will constitute error. We are aware of the rule, and we adhere to the same, that when the main act constituting the gravamen of the offense is proved by direct testimony, and the intent merely with which the act was done is proven by circumstantial evidence a charge on circumstantial evidence will not be absolutely necessary; but this case does not come within that rule. Here, as stated above, the essential elements constituting the offense charged was not the mere passing of an instrument, but the passing of a forged instrument with knowledge on the part of the utterer at that time that it was a forgery. This, as stated above, was the gist of the offense. The passing of the same, though proved by direct testimony, did not relieve the case of being one involving circumstantial evidence, where all the other proof was established by that character of testimony, and, in our opinion, the court should have given the requested charge. It is not necessary here to discuss other assignments. For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
