66 S.W. 771 | Tex. Crim. App. | 1902
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of seven years.
Appellant moved to quash the array of jurors on the ground that one of the commissioners who drew the jury for that term of court was interested in three certain civil suits, being a party thereto; said suits requiring the intervention of a jury, and being on the jury docket; and, further, that said jury commissioners were not residents of different portions of the county. A reference to article 3145, Revised Civil Statutes, which prescribes the qualification of jury commissioners, requires, among other things, that they should be residents of different portions of the county, and that they shall have no suit in said court which requires the intervention of a jury. If the expression "shall be," in connection with the qualification of jury commissioners, is given a mandatory meaning, then a jury drawn by commissioners not possessing such qualifications would not be a legal jury, and the verdict rendered by such a body would not be a legal verdict. For instance, if one or more jury commissioners should be impaneled to select a jury who are not intelligent citizens, and unable to read and write, and not qualified jurors and freeholders of the county, are not residents of different portions of the county, or one or more of them happen to have a suit on the jury docket, then it would follow that all of the verdicts rendered by a jury so drawn could be vitiated. It has been held in a number of cases, where the language was equally as strong, prescribing the qualification of jurors, — for instance, that the juror shall be a freeholder, — this could not avail a defendant after verdict on motion for new trial. He must in such case go further, and show that probable injury resulted to him. Leeper v. State, 29 Texas Crim. App., 63; Williamson v. State, 36 Tex.Crim. Rep.; Mays v. State,
We do not think the court committed any error in refusing to quash the indictment on the ground that there is any variance between the purport and tenor clauses of the indictment. We do not understand the indictment to allege the forgery of the note, but sets out the note, and then alleges the forgery of the indorsement.
Appellant objected to the introduction of the testimony of Stevens, who testified that sometime about the 5th of March he met defendant and a woman in New Orleans, when defendant introduced said party to him as his wife. This was excepted to on the ground that it was irrelevant, immaterial, and prejudicial, and was subsequent to defendant's marriage with Dollie Trimble. The first grounds of objection have been held not to present the question of the admissibility of testimony sufficiently for review. Hamblin v. State, 41 Tex.Crim. Rep.. The fact that the introduction took place subsequent to his marriage with Dollie Trimble, or his alleged marriage, would not suggest that this testimony was not competent. The State claimed throughout that the marriage with Dollie Trimble was a fraud, and did not constitute a legal marriage, so that the evidence regarding appellant's marriage to another woman was competent on this issue. Appellant proposed to prove by Lee Frisby that the signature of Dollie Trimble to the indorsement on said instrument did not compare with the signature on a deed which she had executed. The court excluded this testimony, because profert of the deed was not made for comparison. In this there was no error.
In bill of exceptions number 6 appellant brings in review the admissibility of certain evidence introduced before the jury for the comparison of signatures. The bill is substantially as follows: The State had the witness Dollie Trimble to write her name on a blank piece of paper three times before the court and jury; and offered her signature, in connection with the signature upon the note, in evidence before the jury, thereby securing a comparison of the signature as written upon the note and as written upon the blank piece of paper, which was offered as evidence in this case. To which defendant excepted upon the ground that the same had been written long after the signature was written upon the back of the note and under different circumstances, and was written with a stub pen, when the signature on the back of the note appeared to have been with a sharp-pointed pen; and that the manner of proving the handwriting of Dillie Trimble, in the way it was done, was illegal; and for the further reason that the signature made by her in the courtroom in the way and manner aforesaid should not have been introduced, for she being the main witness and the alleged injured party, she could therefore, on account of her hostility to defendant, disguise her handwriting and dissemble the same, if she saw proper to do so, and in that way showing the dissimilarity in her signature on the back of said note *475 and as written upon the blank piece of paper. Which objections the court overruled, and permitted the evidence to go to the jury, and the defendant excepted. In support of his contention that the evidence thus affording the jury a comparison of the handwriting was inadmissible, appellant cites us to McGlasson v. State, 37 Texas Criminal Reports, 620. However, the State insists that said case is not in point and conclusive upon the question, inasmuch as the bill, on its face, does not make it appear that at the time Dollie Trimble wrote her signature she had the indorsement on the back of the note before her. It is true, the bill does not state in so many words that she had said indorsement before her at the time she made the signatures before the jury, and in that respect the cases as presented are not similar. But, it does occur to us, even if it be conceded that she had not seen the indorsement on the note at that time, yet, if she had really signed the indorsement thereon, she would, no doubt, have recalled how she signed the same. She certainly would remember how she made her ordinary signature. And, of course, the opportunity would be afforded her to dissemble and disguise her handwriting, — that is, not write in her ordinary method, — so that the danger of fabrication, upon which the cases seem to be based, would still be present. Evidence of the genuineness or want of genuineness by comparison of handwriting, to go to the jury, does not appear to be encouraged by the authorities, and is only permitted under proper safeguards. Such comparison is permitted between the alleged forged instrument and one offered in evidence, executed before there was any inducement to fabricate, and proved to be genuine; but the authorities hold that it is not competent, as was held in McGlasson's case, to have the witness make her signature before the jury for the purpose of comparing same with the signature on the alleged forged instrument. We see no reason to change the rule laid down in said case, and we believe the bill here presented brings the question squarely under the doctrine laid down in McGlasson's case, and the authorities therein cited. In this particular case appellant's defense appears to have been twofold, to wit: (1) That he executed the indorsement on the instrument himself (though there is no positive proof of this), under authority of the prosecutrix; and (2) that prosecutrix herein executed the indorsement. And the admission of illegal testimony tending to support the evidence of prosecutrix and destroy the theory of appellant, to the effect that the indorsement was made by her, was calculated to injure and impair his rights before the jury.
Appellant objected to the charge as given by the court, particularly with reference to the alleged marriage of the prosecutrix with appellant, as bearing on the issue of appellant's authority to control the notes and transfer the same. We think the charge as given is correct, and was as liberal as appellant could ask, under the circumstances.
For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded. *476