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65 Tex. Crim. 25

143 S.W 178

Howard v. State

Court of Criminal Appeals of Texas

Decided November 1, 1911

Court of Criminal Appeals of Texas · decided 1911-11-01

<p>1. —Forgery—Requested Charge—Bill of Exceptions.</p> <p>Where the requested charge does not occur in the record otherwise than as attempted to be saved by the bill of exceptions, and the trial judge does not remember such charge, the same can not be "considered on appeal.</p> <p>2. —Same—Bill of Exceptions—leading Questions.</p> <p>Where the record showed that a leading question was asked an unwilling witness, there was no error; besides, the bill of exceptions is defective. Following Douglas v. State, 58 Texas Crim. Rep., 124, and other cases.</p> <p>3. —Same—Evidence—Opinion of Witness—Bill of Exceptions.</p> <p>Where the indictment charged that the forgery was intended to injure. and defraud, an objection sustained to defendant’s question whether prosecuting witness believed that defendant intended to defraud him, was correctly sustained; besides, the bill of exceptions was insufficient.</p> <p>4. —Same—Evidence—Charge of Court—Intent—Bill of Exceptions—Other Transactions.</p> <p>Upon trial of forgery of a check, there was no error in admitting in-evidence other checks signed by the defendant contemporaneously; the same being limited to the question of intent; besides, the bill of exceptions was insufficient.</p> <p>5. —Same—Charge of Court—Disjunctive—Statutes Construed.</p> <p>Where the defendant was charged with forgery with intent to injure and defraud, a complaint to the court’s charge, because the same used the words “injure and defraud” disjunctively, there was no error. Penal Code, 530.</p> <p>6. —Same—Charge of Court—Motion for New Trial.</p> <p>Where the objections in the motion for new trial complained of the court’s charge because the same is vague, indefinite, unintelligible, and calculated to mislead the jury, the same was too general to be considered on appeal; besides, the charge of the court was correct.</p> <p>7. —Same—Charge of Court—Weight of Evidence.</p> <p>Where, upon trial of forgery, the court submitted in his charge defendant’s theory of consent to sign the check, and was more favorable to the defendant than the law required, there was no reversible error even if it was upon the weight of the testimony.</p> <p>8. —Same—Charge of Court—Other Transactions—Intent.</p> <p>Where, upon trial of forgery of a certain check, other checks contemporaneously passed by the defendant were in evidence, there was no error in the court’s charge in limiting the same to the question of intent.</p> <p>9. —Same—Motion for New Trial—Bill of Exceptions—Judge.</p> <p>Where the grounds of appellant’s motion for new trial for reversal related to requested charges and the admission of evidence and the conduct of the trial judge, and there were no bills of exception, the same could not be considered on appeal.</p>

Cited by 3 later decisions — most recently May 1926

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1911-11-01

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¶1 ON REHEARING.

¶2 January 24, 1912.

PRENDERGAST, Judge.

¶3 The appellant, in his motion for rehearing, has presented in a very clear and forcible way his contention that the latter sentence in that portion of the sixth subdivision of the court’s charge is on the weight of the evidence, and injurious to appellant which.should result in the reversal of the judgment. We have again carefully gone -over the record and considered this question.

¶4 It is unnecessarjr to again copy that portion of the sixth subdivision of the court’s charge submitting appellant’s defense, the latter sentence of which appellant complains of as on the weight of the evidence; because the whole of that portion of the charge is copied in the original opinion. As we see it, by this charge, the court tells the jury very plainly, in effect, that if appellant had authority from his father to sign the check to acquit him; or even if he had no such authority, but' believed he had, to acquit him; or if they had a reasonable doubt of either of these facts to acquit him, but if his father did not authorize him to sign the check, the mere fact that he paid other unauthorized checks would be no defense. In other words, as to this latter -part complained of, the court distinctly tells the jury in effect if appellant forged two other checks but his father paid them off and did not prosecute him therefor, that mere fact would be no defense if he forged this check. In our opinion this was a correct enunciation of the law peculiarly applicable to the facts of this case and was not a charge on the weight of the testimony.

¶5 As stated in the original opinion herein, the fact that the father had to testify against his son and upon his testimony his son was convicted excites our sympathy and regret. We, like the jury, must fol-' low the law and, seeing it as we do, we can not reverse this case.

¶6 The only other question presented by appellant is, he contends that because the complaint of the court’s action in lecturing appellant’s father is «worn to by- him in his motion for new trial, this court should consider it, even though the matter is not presented by bill of exceptions. This is contrary to the long established and well known ■practice of this court, which is that it can not and will not consider such questions unless authenticated by a bill of exceptions approved by the judge.

¶7 The motion for rehearing will, therefore, be overruled.

¶8 Overruled.

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