Sweet v. State

28 Tex. Ct. App. 223 | Tex. App. | 1889

Willson, Judge.

This conviction is for the forgery of an order in. writing purporting to be the act of one Fields. We think a new trial should have been awarded the defendant because of the absence of the witness Bryant Thompson, whose testimony, we think, was material and probably true. Defendant made a first application for continuance to-enable him to obtain said testimony, in which he showed that he had used reasonable diligence to have said witness present at the trial, which application the court overruled. It is stated in said application that defendant expected to prove by said witness that he heard Fields authorize-defendant to obtain from Killingsworth, the drawee of the alleged forged order, fifteen dollars, the amount named in said order, on the credit of him, the said Fields. This testimony would be material in several aspects, 1. As tending to show that defendant had lawful authority to make said order, or had good reason to believe, and actually did believe, that in obtaining the money from Killingsworth he acted under sufficient authority. 2. As tending to show that in the transaction he acted without an intent-to injure or defraud. 3. As tending to show, in connection with other evidence adduced on the trial, that the order was genuine; that the same had in fact been executed by said Fields. It can not be said, in view of the evidence on the trial, that said absent testimony is not probably true.

We are further of the opinion that under the peculiar facts of this case the court should have instructed the jury in accordance with article 441 of the Penal Code, to the effect that if the defendant in making said order, if he did make it, acted under an authority which he had good reason to believe, and actually did believe, to be sufficient, he was not guilty of forgery, though the authority was in fact insufficient and void. This we think was a part of the law of this case, there being some evidence tending to show that Fields had authorized the defendant to get the money from Killingsworth on his, Fields’s, credit; and it being shown also that defendant was ignorant and illiterate, and may therefore have reasonably believed that such authority justified the making of such order.

Upon the whole case, as presented in the record, we are impressed with the belief that the ends of justice will be best subserved by according to the defendant another trial. The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.

White, P. J., absent.