No. 1999. | Tex. Crim. App. | Oct 11, 1899
Lead Opinion
Appellant was convicted of passing as true a forged instrument in writing, and his punishment assessed at eight years confinement in the penitentiary, and he appeals.
This is the second appeal in this case. For the opinion reversing the case at a former term of this court, see 40 Texas Criminal Reports, 72.
Appellant's first assignment of errors involves the action of the court in striking out his special plea of former jeopardy and acquittal in the District Court of Bexar County, the plea in question setting out in proper form the trial and acquittal of the defendant on an indictment for forging the deed which he is charged to have uttered in the present indictment, and it is said that they are one and the same transaction, and that the same evidence necessary to a conviction in this case was adduced, and was requisite to be adduced, on the former trial. It can not be urged that the forging and uttering the same forged instrument are not made by our statute two distinct offenses, and, prior to the Act of 1895, a conviction for one offense did not bar a prosecution for the other. Penal Code, art. 549a. But it will be noted that said *308
article makes a conviction, and not an acquittal, a bar. Green v. State, 36 Tex.Crim. Rep.. Where the indictment on which a defendant is being tried and the plea in bar show distinct offenses, as in this case, not susceptible of being proved as the same identical case, and in the former case an acquittal is shown, the court may strike out the plea of former jeopardy. Wright v. State, 37 Tex.Crim. Rep.; Byas v. State, ante, p. 51. As was said by the Supreme Court in Wilson v. State,
Appellant contends that the court erred in permitting the State, over the objections of the defendant, to place H.L. Spain on the stand, and to reproduce the testimony of defendant when on the stand as a witness in his own behalf on the former trial of this case, in May, 1897, because (1) the action of the State was tantamount to putting the defendant on the stand as a witness against himself, and forcing him to testify against himself; (2) it appeared that the defendant, when testifying, was at the time under arrest, and not warned; (3) it put the defendant in the attitude of an impeached witness by the testimony of other witnesses, upon facts material and immaterial, and said testimony was not limited by the court in its charge, and the jury were nowhere informed *309
that such testimony could be received or considered for such purpose, and that such reproduced evidence could not be received as evidence of guilt. It is not necessary here to discuss the question whether or not, when a defendant takes the stand on his own behalf at a former trial of the same case, his testimony then given can be used against him on a subsequent trial, as that matter was gone into thoroughly in Collins v. State, 39 Texas Criminal Reports, 441. We hold here, as we did in that case, that, where a defendant takes the stand on his own behalf, we will presume that it was voluntarily done on his part, and after full consultation with his counsel, and with the knowledge of his rights in the premises. He is then under the protecting ægis of the court, and the statute as to warning in such cases does not apply, and testimony so given can be used against him at any subsequent trial of the same case. And see, also, Whart. Crim. Ev., sec. 664; People v. Kelley,
There was no error in the action of the court refusing to permit the defendant to show by the witness Burke, on cross-examination, that he, (Burke) had made out and sworn to a false account against the State as a witness on the trial of the defendant in Atascosa County. Carroll v. State, 32 Texas Criminal Reports, 431, does not support appellant. The witness can only be impeached by showing that he has been legally charged with some offense, such as a felony or misdemeanor imputing moral turpitude. Brittain v. State, 36 Tex.Crim. Rep..
Appellant insists that the court should have directly instructed the jury that Maddox, the officer before whom the acknowledgments to the deeds were taken, was an accomplice, as well as Burke and Nicholson. While the court did not instruct the jury that Maddox was an accomplice, the court did instruct the jury on the law of accomplice testimony with reference to Maddox, and told them distinctly, if they found he was an accomplice, that they could not corroborate Burke and Nicholson with his testimony, and that they could not convict defendant unless they found that there was other testimony in the case corroborative of the accomplices' testimony and tending to connect appellant with the commission of the offense. The record clearly shows a difference in the attitude of the witnesses Burke and Nicholson and the witness Maddox on the subject of accomplices' testimony. The two former were confessed accomplices. As to the latter, while there is testimony strongly suggesting his implication in the case as an accomplice, yet he strenuously denied this, and in his evidence made a very plausible explanation as to his connection with the case, and how he came to take the certificate of acknowledgment as he did, — that is, he explained how he came to certify that Nicholson, who executed and acknowledged the deed as Felps, was personally known to him; and, in our opinion, under the evidence, it was proper for the court to submit the question as to Maddox being an accomplice to the jury. On this point counsel refer us to Barrara v. State,
Appellant in his motion for new trial, strenuously urges that the conviction can not stand, on the ground that Burke, Nicholson, and Maddox are all accomplices, and there is absolutely no testimony tending to corroborate them and to connect appellant with the offense charged. If it be true that Maddox is an accomplice, — and there is no controversy as to this, — then, if it be conceded that the jury may have found otherwise, still it would be the duty of this court to reverse the case, unless there is testimony, outside of these three witnesses, corroborating them, and tending to connect appellant with the commission of the offense; for we fully recognize the doctrine that the verdict of the jury on this question is not binding, in the face of overwhelming testimony showing him to be an accomplice. As stated before, Maddox did not confess himself an accomplice, nor is there any evidence in the record of an agreement between him and the State that the case against him was dismissed in consideration that he should testify against appellant. It is conceded that there is strong testimony in the case indicating or tending to show him to be an accomplice, but he denied this, and explained the method of his taking the acknowledgment of Nicholson, who signed the name of Felps to the deed, in a manner that is at least plausible, and we can not say that the jury were bound to disbelieve him. They may have found that he had no criminal connection with the execution of the deed, but acted merely in a ministerial capacity in taking the acknowledgment. If they were authorized to do this, then it may be assumed, in support of the verdict, that they did this; and, if the jury did not regard him as an accomplice, then, in our opinion, his testimony corroborates the evidence of Nicholson and Burke, the confessed accomplices, and tends to connect appellant with the commission of the offense. But if it be conceded that Maddox was an accomplice, then it occurs to us there is testimony outside of these *311 three witnesses, corroborating them, and tending to connect appellant with the commission of said offense. Appellant cites us to a number of circumstances from the record that would suggest a want of corroboration by extraneous testimony. The question, however, is, are there facts and circumstances in the record, fairly considered, which tend to connect appellant with the commission of the offense? We cull the following from the evidence, which, in our opinion, tends in that direction: According to appellant's own testimony, reproduced from a former trial, he was present at the time the forged instrument was executed and acknowledged. The accomplices say that he gave direction as to the taking of the acknowledgment, and insisted that it should be taken by an officer who knew the assumed vendor Felps. Preston was a lawyer, and, from his vocation, familiar with the rules regulating the conveyance of real estate. Burke and Nicholson, alias Felps, were not lawyers, — the one was a horse trader and the other a painter, — and not likely to know how an acknowledgment should be taken. Appellant alone, it seems, knew the necessity of having the certificate of acknowledgment show the important fact of a personal acquaintance by the officer with the alleged vendor, Nicholson, alias Felps. The testimony of outside witnesses establishes the fact that defendant lived in Atascosa County, and that neither Burke nor Nicholson lived there. Burke lived in San Antonio, and was known to appellant; and Nicholson, alias Felps, lived there also, though in the deed he assumed to be from Grimes County. The land was situated in Atascosa County, and Preston was desirous of purchasing the same. The record shows that he had requested Burke to look up Felps, the owner of the land in question, in order that he might purchase it from him. Burke is not shown to have had any such desire. Indeed, it is strongly suggested by the testimony that he was impecunious, and exceedingly unlikely to have $500, the consideration expressed in the deed from Felps to him, with which to buy the land. Burke states (and the record supports him in this) that he made nothing by the purchase and sale. The consideration expressed in the deed to him was $500, while the consideration expressed in the deed from him to appellant was $600. The evidence shows, however, from appellant's own reproduced testimony that he did not claim to have paid $600, but something less than this. The only evidence in regard to value is to the effect that the land was only worth $2.50 an acre, or $400 for the tract. It is a singular fact (if this was a bona fide transaction) that Preston, who knew the land, was paying more than it was worth. And, more than this, from appellant's standpoint, the vendor, Felps, was an absolute stranger to him, yet he made no investigation respecting him to ascertain his identity as the owner of the land. The patent was to Felps as a locative interest, and he should have been at least 24 years old in 1876, when the patent was issued, yet the man Nicholson, who personated Felps, and whom appellant recognized at a former trial of the case as the Felps who conveyed the land, in 1876 was only 14 years old, and in 1893, when the land *312 was conveyed, was only 31 years old. Neither his appearance as to age, nor the surrounding circumstances attending the transaction, appear to have suggested to appellant any inquiry as to his identity. The proof shows that appellant kept the deeds from the record for a year, thus trusting a mere stranger, who during all that time was in a position to defraud him by another sale of the premises. And it is significant, too, that the conveyance was not made directly from Felps to appellant, but two deeds were required, when one would have answered the purpose of an honest transfer. The assumed accomplices, in our opinion, show that appellant was present at the execution of the deeds, and that the deed from Nicholson, alias Felps, to Burke, and the deed from Burke to him, were executed at the same time, and were a part of the same transaction. The extraneous testimony shows that the trade was made for appellant's benefit; that appellant supervised and directed the same, being the master spirit on that occasion; that Burke was a mere conduit; and that the whole trade was consummated for appellant's benefit. This is the effect of the outside testimony, and it corroborates the testimony of Burke, Nicholson, and Maddox (if it be deemed that the latter is an accomplice); and these facts tend to connect appellant with the offense charged, — that is, they tend to show that he was present at the time and knew that the deed from Felps to Burke was a forgery, and that when he filed the deed for record with the clerk of Atascosa County, he had this guilty knowledge.
The court's charge sufficiently informed the jury as to the use they could make of the deed from Burke to Preston, and there was no error in the action of the court in failing to give the requested charge on this subject.
Appellant complains that the court refused to give his special requested charge number 8, instructing the jury that they could consider certain testimony as a test in determining the matter of the forgery of the deed in question. We find no bill of exceptions to the refusal of the court to give the requested charge, and no complaint as to such refusal in the motion for new trial. However, the court was not required to single out this testimony, and give a special charge upon it.
Appellant also insists that a new trial should have been granted him on newly discovered evidence. As to some of the witnesses, it appears, by the least diligence, appellant might have discovered their testimony. This is especially true as to the witness T.H. Franklin, who was of counsel on the trial of the forgery. Furthermore, the newly discovered testimony appears to be, some of it cumulative, and some of it of an impeaching character. We do not believe the court erred in overruling said motion. The judgment is affirmed.
Affirmed. *313
Addendum
An opinion was rendered at a former day of this term affirming this case, and it now comes before us on motion for rehearing. Appellant only calls in question the correctness of the opinion heretofore rendered in two particulars: First, he says that the court erred in permitting the witness Spain to reproduce the testimony of appellant given at a former trial of the case; second, he maintains that Burke and Nicholson, alias Felps, are confessed accomplices, and the record fails to disclose any testimony corroborating the accomplices.
In regard to the first proposition, it is insisted that the decision in Collins v. State, 39 Texas Criminal Reports, 441, does not apply; and in this connection it is urged that Collins was a witness at a former trial, and was also a witness on his own behalf at a subsequent trial, and that his testimony given at a former trial was used to impeach or contradict him. This, appellant says, was admissible, because he was a witness at both trials. Appellant further says "that this is all quite true and sound, when applied, as it was in the Collins case, to the evidence of a testifying defendant, but it has no bearing at all where a defendant does not testify." In reply to this proposition, we are constrained to say that appellant evidently misapprehends the Collins case, and the reason urged by appellant in said case why the testimony of the defendant could not be reproduced. The objection there urged was that a defendant's testimony at a former trial could not be reproduced against him at a subsequent trial, because it was a statement of the defendant made while under arrest, and no warning such as is required by the statute was shown to have been given; and that decision was predicated upon the idea that a warning in such case was not necessary; that when appellant took the stand on his own behalf, though for the time being he might be under arrest, yet he was in the presence of the court; and that his giving the testimony was free and voluntary, — thus placing his statement or confession on the same plane as a confession made out of court when not under arrest, or a statement or confession made under arrest after having been duly warned. And it occurs to us, as was said in that case, that any other rule would place a defendant's testimony, given on his own behalf, under a ban and at a disadvantage. If the rule contended for by appellant be correct, then it would be impossible to prosecute a defendant testifying on his own behalf for perjury, unless he had been duly warned before he gave in his testimony, as his testimony given without any warning could not be reproduced against him in a trial for perjury. While our statute says that the former conviction can not be alluded to at a subsequent trial, this affords no reason why testimony given at a former trial can not be reproduced, and such testimony would not necessarily suggest a former conviction. Nor does the fact that the statute inhibits any reference to the failure of a defendant to testify furnish any reason why testimony given by him at a former trial can not be reproduced, *314 — no more so than an instruction by the court telling the jury, in the terms of the statute, that they will not consider the failure of defendant to testify in the case as a circumstance against him. As stated above, the whole question with reference to the reproduction of a defendant's testimony given at a former trial resolves itself into the proposition as to whether or not this procedure is a violation of the statute with reference to confessions of a defendant made while under arrest; and on that subject we adhere to the opinion heretofore rendered in the Collins case, supra, and followed in this case, — that, when a defendant takes the stand on his own behalf, he does so with full knowledge of his rights in the premises, and on a subsequent trial of the case it is competent for the State to introduce such evidence against him, although he may not take the stand at the subsequent trial.
Appellant, in the able brief filed on rehearing, discusses thoroughly and elaborately the question as to the corroboration of the accomplices by testimony aliunde, and calls the court's attention to several assumed misstatements on the part of the court. Among other things, he urges that the record furnishes no data showing, as the court stated, that Felps' certificate was a locative interest. We have examined the statement of facts in that particular, and find that we were in error in so stating. However, the main fact in connection with said statement was as to the age of the grantor. This would make a difference of only about three years, and we do not consider it material. The main fact to which we called attention was that the grantor, Felps, in 1893 should have been a number of years older than Nicholson, alias Felps, was at that time.
As to the matter of corroboration of the confessed accomplices, we fully discussed that in the original opinion, and cited therein a number of circumstances introduced in evidence tending, in our opinion, to show corroboration. While these facts and circumstances do not show positive knowledge on the part of Preston at the time he uttered the alleged deed that same was forged, yet, in our opinion, they not only were sufficient to put Preston upon notice that the said deed was forged, but the circumstantial evidence showed that he had actual knowledge at the time he passed it that it was forged; and we apprehend it will not be contended by appellant that this guilty knowledge can not be proved by circumstantial testimony. In the view we take of it, the circumstantial testimony is of an overwhelming character, and tends strongly to corroborate the accomplices' evidence. The motion for rehearing is accordingly overruled.
Motion overruled.
DAVIDSON, Presiding Judge, absent. *315