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71 Tex. Crim. 94

154 S.W 222

Pye v. State

Court of Criminal Appeals of Texas · decided 1912-06-19

<p>T.—Forgery—Venue—Jurisdiction—Evidence.</p> <p>Where, upon trial of forgery, the defendant contended that he wrote and signed the alleged note in a county other than that of the prosecution, but the State showed that the note was payable and dated in the county of the prosecution, and that the defendant lived and did business there and the court properly submitted the issue of venue in his charge to the jury, there was no error on this ground.</p> <p>2. —Same—Venue—Circumstantial Evidence.</p> <p>It has been held by this court that although proof of venue be wholly circumstantial, the court is not required to charge on circumstantial evidence as to venue. Following Stedhan v. State, 40 Texas Grim. Rep., 43.</p> <p>3. —Same—Rule Stated—Venue.</p> <p>Where, from the evidence, the jury may reasonably conclude that the offense was committed in the county alleged, this court will not disturb their finding. Following Hoffman v. State, 12 Texas Grim. App., 406, and other cases.</p> <p>4. —Same—Charge of Court—Requested Charges.</p> <p>Where, upon trial of forgery, there were circumstances in evidence upon which to base a finding of the jury that the venue was in the county of the prosecution, and the court submitted a proper charge thereon, there was no error in refusing special charges on this issue. Distinguishing Arrington v. State, 62 Texas Grim. Rep., 357; Smith v. State, 25 Texas Grim. App., 454; Miles v. State, 23 Texas Grim. App., 410.</p> <p>5. —Same—Venue—Equitable Lien.</p> <p>Where an equitable lien could be secured and enforced on land in the county of the .prosecution, the venue was properly laid in said county. Article 235, Code Criminal Procedure.</p> <p>6. —Same—Name of Party Injured—Idem Sonans.</p> <p>Where, upon trial of forgery, the prosecuting witness testified her name was “Rene Perry,” and the name signed to the alleged forged note was “Reen Perrey,” the names were idem sonans, and there was no error in permitting prosecutrix to testify that she had not signed the note or authorized any person to sign her name thereto.</p> <p>7. —Same—Rule Stated—Misspelling.</p> <p>The law not regarding orthography, no harm comes from misspelling a name, provided it is idem sonans with the true spelling. Following Koontz v. State, 41 Texas, 570, and other cases.</p> <p>8. —Same—Rule Stated—Idem Sonans.</p> <p>Where words pleaded and those proved can be sounded alike without doing violence to the power of the letters found in the variant orthography, a discrepancy between the pleading and proof will be disregarded, the true rule being that the misspelling to be material must have changed the word intended into another word having a different meaning, etc. Following Goode v. State, 2 Texas Grim. App., 520, and other cases.</p> <p>9. —Same—Case Stated—Name of Party Injured.</p> <p>Where, upon trial of forgery, the defendant admitted on the witness stand that it was the name of “Rene Perry” he signed and intended to sign to the alleged note, etc., there was no error in permitting the prosecuting witness to testify that she had not signed the note and had not authorized defendant to sign her name to it.</p> <p>10. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of forgery, defendant admitted that he signed the prosecuting witness’ name to the alleged forged note, claiming that he thought he was authorized to do so, which prosecutrix denied, and there were other facts in evidence corroborating her testimony, the conviction was sustained.</p> <p>11. —Same—Requested Charges.</p> <p>Where the requested charges were refused and so far as applicable to the case, were fully covered by the main charge, there was no error.</p> <p>12. —Same—Indictment—Purport Clause.</p> <p>In an indictment for forgery, it was not' necessary to allege whose act it purported to be or who was intended to be defrauded, it being sufficient in other respects. Following Howard v. State, 37 Texas Crim. Bep., 494, and other cases.</p> <p>13. —Same—Ex Parte Affidavits—Practice on Appeal.</p> <p>The Court of Criminal Appeals can not consider ex parte affidavits which counsel contend strongly support defendant’s testimony on the trial and going to the merits of the case and developed after- the trial, this is a matter for the trial courts and not for the Appellate Court.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1912-06-19

How this case has been cited

Cited by 13 later decisions — most recently March 2011

13 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 ON REHEARING.

¶2 January 29, 1913.

HARPER, Judge.

¶3 Appellant’s able counsel have filed in this case a motion for rehearing, in which they earnestly insist this court was in error in the original opinion in sustaining the finding as to the venue of the offense, and in holding that the court did not err in admitting the alleged forged note in evidence. We have again gone over not only those two grounds but each and every ground in the motion for rehearing, and are thoroughly convinced the original opinion is right on each and every proposition there decided.

¶4*101 In addition to the record as made on the trial, appellant’s counsel have filed in this court since the motion for rehearing was filed, a large number of ex parte affidavits, which they contend strongly support his testimony on the trial, and that he in fact never received any" money on the note, and he was acting for Miss Perry in the premises. This they may do, but can we consider any evidence outside of that .contained in the record on appeal? Should we consider these ex parte affidavits it would be necessary that we have .the State served with a copy of them, and permit it to introduce evidence in rebuttal thereof; in fact, reopen the case-and convert this court into a trial court on the merits of the case, and then substitute our finding on the facts as thus presented to us for that of the verdict of the jury. This we are not authorized to do. If such was the rule, very nearly every case that was appealed to this court would have to be tried de novo. This would be wholly impracticable, and it was never contemplated that this court should become a trial court, for in every case of a felony a jury can not be waived, and there is no provision of law for a jury to be impaneled in this court. It may be that in some case facts are developed after the trial of a case which would cast some doubt as to the guilt of an accused person, but we are permitted to pass alone on the record as made in the trial of the case, for we are but to review the proceedings of that court. If the evidence sustains the verdict of the jury, and the. court has committed no error, we have no option but to affirm the case. In this case the evidence offered in behalf of the State, if believed, fully sustains the finding of the jury, and while defendant by his testimony would show a wholly innocent intent in signing Miss Perry’s name to the note, that fact was submitted to the jury and their finding was adverse to him.

¶5 The motion for rehearing is overruled:

¶6 Overruled.

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