81 S.W. 933 | Tex. Crim. App. | 1904
Appellant was convicted under the second count of the indictment, for passing as true a forged instrument; his punishment being assessed at confinement in the penitentiary for a term of five years.
Appellant insists that the second count of the indictment mentions only one instrument as a forgery, and in no way identifies or describes it, while the tenor clause sets out two distinct instruments, each capable of being forged; and there is no innuendo clause pointing out the one to be relied on, and no election by the State. The tenor clause shows an indorsement on the note, and this appellant insists is a variance from the purport clause. We hold his insistence is without merit. See Miller v. State, 34 S.W. Rep., 267; Strang v. State,
The first bill of exceptions is as follows: "* * * The jurymen selected by the jury commissioners for the week beginning December, 1903, were examined by the court on their voir dire as to their qualifications as jurors. Whereupon four of the jurors, to wit, George Ball, John H. Stapper, Sam Davis and Beck, each stated upon oath to the court that they lived in the county of Bexar, but not in the city of San Antonio; that they had not paid their State and county poll tax for the year 1902, nor for the year 1903; that they were not exempt from payment of poll tax for any cause authorized by law, but owed same and had failed to pay. Thereupon defendant challenged each and all of these four jurors, namely, George Ball, John H. Stapper, Sam Davis and Beck for cause, to wit, that they were not qualified under the law to sit as jurors because they had failed to pay their State and county poll tax for the year 1902, and for the year 1903, which tax they justly owed. Defendant further showed that there were three thousand or more qualified jurors in Bexar County, Texas, who had paid their poll taxes, and who were not disqualified to sit as jurors in this case. The court overruled defendant's challenge for cause to the jurors mentioned, and permitted three of these jurors, George Ball, John H. Stapper, Sam Davis, *106 to sit in this cause, and to try this defendant. The court explained at the time that a sufficient number of qualified jurors who had paid their poll taxes in Bexar County, Texas, could be obtained to try this case; but that it would be impossible to run the three district courts in Bexar County with qualified jurors if the failure to pay poll taxes was recognized by the court as a disqualification. No testimony was then offered to sustain the court's statement. Defendant then and there in open court excepted to the ruling of the court in refusing to sustain defendant's challenges of said juror's for cause. Thereafter this defendant was compelled to and did exhaust all of the peremptory challenges given him by law by striking out the names of ten of the jurymen on the list of the jury, which said ten men were each and all especially obnoxious to this defendant for sufficient reasons to this defendant and his counsel. The three disqualified jurors, George Ball, John H. Stapper, and Sam Davis sat on the jury and tried and convicted this defendant. This defendant now tenders this his bill of exceptions, and asks that the same be allowed, * * * Which is accordingly done, with this qualification: the four jurors challenged for cause were on the regular panel. After the motion was overruled three of said jurors were left on the jury. Defendant's counsel did not challenge or offer to challenge any one of them, except because they had not paid their poll tax, and they did not claim that any of said jurors were objectionable for any other cause. A few days before that time, the court had made an investigation as to the number of qualified jurors who had paid their poll tax in Bexar county; and had come to the conclusion and had found that it would be impossible to run the courts of Bexar County by using only jurors who had paid their poll tax, and that he then so found and stated; that no evidence was taken nor had any written order been made. The investigation made by the court and stated at the time was by taking the statements and judgment of different citizens who had acted as jury commissioners, the judges of the two other district courts and officers of the court, together with the court's knowledge of the matter from having selected jurors for three years next before said date. The court found there was a large number of Mexicans, Germans, Italians, negroes, Polanders and other nationalities who could not read and write and that a great many others were exempt from jury services from grounds given in the statute; that there were three district courts in session for nine months in the year; that each court had drawn for each jury week forty jurors; that about eight-tenths of the courts' terms were jury weeks; that the county court was in session most of the time and used a great many jurors, besides jurors were often sick or had sick families, or were away from home and could not be found; and that while a jury could be selected in this case with little trouble, that all the courts were using jurors who had not paid their poll tax; that it would be impossible to run the courts without using jurors who had not paid their poll tax; that often the regular panel was exhausted, talesmen were brought in, including other jurors who had not paid their poll tax. *107 When defendant's counsel challenged them for same cause which was then as to them sustained and the jury was completed, that at no time did defendant or his counsel claim that any objectionable juror had been forced upon them nor did they make or offer to make any further challenge to any juror who served on the jury, except said challenge for cause — that is, for failure to pay poll tax."
This bill brings in review a construction of article 3139, as amended by the Acts of the Twenty-eighth Legislature, Special Session, p. 16, which provides: "No person shall be qualified to serve as a juror who does not possess the following qualifications: 1. He must be a citizen of the State and of the county in which he is to serve and qualified under the Constitution and laws to vote in said county; but whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county the court may dispense with the requirement of the payment of poll taxes as a qualification for service as a juror." The learned trial judge in construing this article, as shown by the bill, properly holds that the article gives the court a judicial discretion to dispense with the poll tax requisite of jurors when a sufficient number of such poll tax paying jurors can not be found to sit upon the jury for the court during the year; that is, the statute did not mean that before the court could dispense with the poll tax qualification, it must appear there were not enough jurors in the county to try this or any other one case. It is apparent that the purpose of the statute was to authorize the trial courts of this State to dispense with the payment of the poll tax as a qualification of jurors, whenever such prerequisite would incumber or hinder the district and other inferior courts of the county in the administration of justice, and a proper and expeditious trial of cases. But this is as far as said article authorizes the court to go. It did not authorize the court, as was done in this instance, to dispense with the poll tax qualification where the facts make it manifest that there were at least three thousand or more qualified poll tax paying jurors in the county, and who were not disqualified to sit on juries. This fact can be determined at the beginning of the term by the judge thereof. However, this would not deprive defendant, whenever called for trial, to raise this question in passing upon the qualification of jurors. To so hold would be depriving defendant of the right to be heard in the selection of the jury that was to try him under the laws and Constitution of this State. The statute did not contemplate that this should be done. Therefore, it follows that when each case is called, if defendant insists, he has the right to except to being required to take upon his jury men who are not poll tax payers; and if the facts should show that there are sufficient jurors qualified to sit on the jury trying appellant, he is entitled to such qualified jurors. In other words, it becomes a question of fact in each individual case. If we should hold in this case, that where there were three thousand or more poll tax paying jurors, with all the other qualifications, in a county, and yet the court could dispense with said qualification, this would completely *108 nullify the statute, and not carry out its very salutary and evident meaning. Accordingly we hold that the court erred in forcing upon appellant jurors without poll tax qualifications.
In the eighteenth assignment appellant insists the court erred in overruling defendant's motion to strike out from the evidence all testimony referring to a note signed by Chas. Rodgers for land in Bandera County; all evidence about the land for which the Chas. Rodgers note was given, and all evidence about the whereabouts and identity of Chas. Rodgers; all testimony about the note signed Wm. F. Arntz; all evidence about the land for which Wm. F. Arntz's note was given; all the evidence as to the whereabouts and identity of A.M. Elwell, her relations with defendant, her relations with John Woods Sons, bankers; her bank account; all testimony referring to Jessie R. Taylor, her acknowledgment to the deed; her relations with defendant; all testimony referring to the advertisement in the "Express" — for the reason that all of these matters are foreign and extraneous transactions; they are irrelevant and immaterial to any issue in this case; and because they do not prove that defendant in any way forged or passed as true the forged instrument set out in the indictment; that none of these extraneous matters are crimes within themselves; that they do not show any part of a system of forgery, or a passing as true a forged instrument; that they are widely separated in point of time, and are no part of the res gestæ. It has always been held by this court that where one is being tried for forgery, contemporaneous forgeries are admissible to illustrate the purpose and intent, when necessary to develop the res gestæ, or connect the accused with the offense on trial, and to show system on the part of defendant. By contemporaneous we do not mean to be understood as holding the forgeries must occur at one and the same time. It may have been months before or months after the forgery on trial. If they serve to illustrate, or to show system or make apparent the intent with which this act was committed, then they are germane to this transaction, and are admissible in evidence. McGlasson v. State,
Appellant objected to the following portion of the court's charge, to wit: "I further charge you that defendant is on trial alone for the offense charged in the indictment hereinbefore submitted to you, and could not be convicted upon any other offense or upon any other transaction than that charged in the indictment in this case. And I further charge you that you can not consider evidence of other transactions, if any, before you than the one set out in the indictment, unless you believe from the evidence beyond a reasonable doubt that defendant was guilty of the crime of forgery, or of passing forged instruments in writing in said other transactions, and unless you further so believe beyond a reasonable doubt that the instrument set out in the indictment in this case was a forged instrument, and that defendant passed the same to Miss Ella Felder as true, and unless you further so believe from the evidence beyond *109 a reasonable doubt that the said offense, if any, was a part of a system of crime committed by defendant, and connected with the transaction now under investigation, and that defendant was connected with each and every one of said transactions, including the charge made by the indictment in this case." It will be observed that the court tells the jury defendant could not be convicted unless he was connected with each and every one of said transactions, including the charge made by the indictment in this case. Appellant insists that the charge is on the weight of the evidence. If so, it is favorable to appellant. The collateral forgeries are merely introducable, and the court should so say, for the purpose of illustrating the motive, system and intent, if they do so illustrate the motive, purpose and intent of appellant, in passing as true the forged instrument for which he is on trial. We would not be understood as holding that contemporaneous suspicions against appellant would be admissible, but contemporaneous acts tending to show and make out a prima facie case of forgery or passing a forged instrument.
Appellant complains that the court erred in admitting various and sundry letters. We will not copy these letters, but merely say that these letters pertaining to this case, directly traceable to appellant by the evidence, are admissible. Letters not shown to have been written, indorsed or received by defendant, in response to those written by himself or under his authority, are not admissible.
Appellant also insists that the court erred in admitting the abstract of the title to the land for which the note in question was given. This was error. The State would be entitled to introduce the original deeds, or authenticated copies thereof, with proper notice as required by the statute.
Appellant insists that the charge of the court is incorrect in other particulars than already discussed. We think the charge of the court is correct and properly presented the issues raised.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
