Fry v. State

Decided June 12, 1918

Court of Criminal Appeals of Texas · decided 1918-06-12

1.—Forgery—Endorsement—Check—Circumstantial Evidence—Sufficiency of the Evidence. Where, upon trial of forgery of ah endorsement of a certain check payable to a fictitious person, the evidence sustained the conviction, although the same was entirely circumstantial, under a proper charge of the court, there was no reversible error. 2. —Same—Other Offenses—Collateral Transactions—Handwriting. Where, upon trial of forgery of an endorsement upon a certain check made payable to a fictitious person, and that defendant knowing that it was fictitious forged said endorsement, the State relying upon circumstantial evidence, there was no error in permitting the State to introduce in evidence a large number of similar checks drawn in favor of several payees and indorsed by defendant and either collected or passed by him, to show guilty knowledge, system and criminal intent; there being evidence that the indorsement of the payee on these' checks resembled in certain particulars the handwriting of defendant and that they were spurious and fictitious and forgeries known to the defendant. 3. —Same—Rule Stated—Other Offenses—Fictitious Name—Evidence. Proof that no person bearing the name signed to a check has any right to draw on the party to whom it is directed is prima facie evidence that the name is fictitious; and testimony by a person largely acquainted in the locality where defendant represents the maker of the instrument to live that he knows of no such person sustains a conviction, defendant offering no proof of the existence of such person; and the fact that defendant had re- . ceived the fruits of a forged instrument, while not itself sufficient, may, when taken in conjunction with other circumstances in evidence, be sufficient to warrant a conviction for forgery. 4. —Same—Collateral Transactions—Charge of Court—Limiting Testimony. The collateral transactions have a limited effect, and the propriety and necessity, on request that the court should advise the jury of this fact, has been well established, and where the court in the instant case in his main charge as well as the requested charges complied with this rule, there was no reversible error. 5. —Same—Charge of Court—Limiting Testimony—Words and Phrases. Where, upon trial of forgery of an endorsement upon a certain check, the court, together with other circumstantial evidence, admitted in evidence a large number of similar checks and endorsements, to prove system, intent and guilty knowledge, and so charged the jury and limited said testimony thereto, a criticism of the court’s said charge that the limitation is not accurate because it used the words, "such checks” and became thereby misleading is untenable, when taken in connection with the several requested charges upon this subject. 6. —Same—Continuance—Handwriting—Practice on Appeal. Where, upon trial of forgery, the application for continuance showed a want of diligence, but the defendant contended that there existed an agreement with the State that it would not be necessary to subpcena the absent witness, in view of the fact that he had been supcenaed in another case, but the application disclosed that the testimony of the absent witness was upon the subject of defendant’s handwriting and had not been used at several trials involving the same issue, there was no error in overruling the same. 7. —Same—Requested Charge—Former Trial—Agreement of Counsel. Where, upon trial for forgery, the State introduced testimony of a certain witness on a former trial by agreement of the parties, that one of the collateral checks was negotiated by defendant and that this took place in a saloon, where defendant endorsed the check and received the money, there was no error in the court's refusal to inform the jury that the fact that the transaction occurred in a saloon should not be taken as evidence of guilt, there being nothing in the record to indicate that the jury were informed of the result of the former trial. 8. —Same—Fraudulent Intent—System—Other Offenses—Buie Stated. It is necessary to a conviction in every contested forgery case, that a fraudulent intent on the part of the accused be shown, and when lack of such intent, or want of identity or system is an issue in the case, or when such proof tends to connect the. accused with the offense, or disproves the defensive theory, or is part of the res gestas, evidence of similar transactions on the part of the accused is admissible. Following Hennessey v. State, 23 Texas Grim. App., 340, and other cases. 9. —Same—Evidence—Other Transactions—Contemporaneous Acts—Buie Stated. The State may show in such cases any number of similar transactions, although they cover a period of time and are not coincident with the transaction involved in the particular case on trial, and are not contemporaeous with the alleged forged paper. 10. —Same—Comparison of Handwriting—Evidence—Other Transactions. Upon trial of forgery of an endorsement of a certain check made payable to a fictitious person, there was no error to admit testimony hy the State of a large number of checks, warrants, etc., similar to the one upon which the prosecution was based and similar in endorsement in defendant’s handwriting, by a comparison of the handwriting of the proved signature of defendant, and that claimed to have been forged. Following Ferguson v. State, 61 Texas Grim. Rep., 152, and other cases, this was especially admissible in view of the fact that the defendant introduced the minutes of the commissioners’ court to show the allowance of the alleged forged check, etc., to be genuine. 11. —Same—Charge of Court—Other Offenses. If there were any checks introduced in evidence about which some of the witnesses were in doubt as to whether they were forgeries, the court’s charge fully safegarded the rights of the defendant to the effect that they could not consider such evidence, etc. 12. —Same—Order of Commissioners8 Court—Fictitious Person—Collateral Attack. There is no force in defendant’s contention that the account in favor of the alleged fictitious payee had been approved by the commissioners' court and therefore imported verity, and that said order could not be collaterally attacked to show that said payee was a fictitious person; besides there was no objection to the testimony tending to establish the fictitious character of said payee, and besides said order was void on its face. 13. —Same—Sufficiency of the Evidence. Where, upon trial of forgery of an endorsement on a certain check payable to a fictitious person, the conviction was fully supported by the evidence, although circumstantial, under a proper charge of the court, there was no reversible error. 14.—Same—Motion for Rehearing—Statements in Former Opinion. Where, upon motion for rehearing, appellant contended that certain named collateral checks introduced in evidence were not shown to hear the endorsement of appellant, but the record negatived such contention, there was no reversible error. Following Gaut v. State, 49 Texas Grim. Rep., 493. 15. —Same—Clerical Error—Statement in Original Opinion. Where it was pointed out in the motion for rehearing that there was a clerical error in the original opinion, in stating the number of collateral checks introduced in evidence, but this error had no bearing upon the legal questions involved, there is no reversible error. 16. —Same—Mistake—Bill of Exceptions—Statement in Original Opinion— Transcript. Where this court was mistaken in its statement that there was no verified bill of exceptions to the court’s charge in limiting the effect of other transactions to system, intent, etc., arising from the faulty preparation of the record, but this had no bearing upon its decision, there is no reversible error; but the clerks are admonished to properly prepare their transcripts. 17. —Same—Charge of Court—Collateral Transactions—Words and Phrases. Where, upon motion for rehearing, the appellant again objected to the words, “such checks” as they occurred in the court’s charge as to collateral transactions, but the record on appeal showed that even if this criticism might be plausible if the court’s charge stood alone, yet it being supplemented by the requested charges given which fully enlightened the jury upon the subject, there was no reversible error. 18. —Same—Remarks by Court—Practice on Appeal—Agreement—Reproduction of Testimony. Where the bill of exceptions showed that the State’s counsel offered in evidence the testimony given upon a former trial by agreement, and did net show any objection to that part of said testimony which showed that defendant collected a collateral check in a certain saloon, but that defendant’s counsel made a verbal request that the court should limit said part of the testimony, whereupon the court remarked that he had never limited the same before and believed the jury understood the matter, etc., there was no reversible error. 19. —Same—Charge of Court—Collateral Transactions—Article 743 C. O. P. Where it appeared from the record on appeal from a conviction of forgery, that the jury could not have been misled in regard to the purpose for which certain collateral transactions were introduced in evidence, and a reversal would violate article 743 C. C. P., there was no reversible error. 20.—Same—Requested Charges—Practice on Appeal. Where the requested charges which were refused were either covered by the general charge of the court or were not applicable to the facts of the case, there was no reversible error.

Good law ✅— No negative treatment on recordhow we know

Decided 1918-06-12

How this case has been cited

Cited by 8 later decisions — most recently February 1975

8 state decisions

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¶1 ON REHEARING.

¶2 October 22, 1919.

MORROW, Judge.

¶3 Concurring in the opinion written by my associate overruling the motion for rehearing, I deem it proper to refer to some matters mentioned touching inaccuracies in the original opinion.

¶4 *86 Concerning the I. W. or J. W. Harper checks, the contention that there was no evidence showing that they bore the endorsement of appellant is negatived by the record. Bill of exceptions shows that the witness Padgett testified that each of the checks bore the appellant’s genuine endorsement. In his testimony he has given a complete list of the checks introduced in evidence, including the Harper checks. Henson, another witness, gave in substance the same testimony, and it affirmatively appears that the appellant was in possession of the Harper checks; and the possession of a forged check, even though not endorsed by appellant, was sufficient to take to the jury the question of fact as to his knowledge of the forgery, which was an issue in case upon which the court submitted to the jury charging passage of a forged instrument. Wharton’s Crim. Law, sec. 931; Gaunt v. State, 49 Texas Crim. Rep., 493; Fische v. State, 54 Texas Crim. Rep., 55; Wharton’s Criminal Evidence, vol. 1, p. 135, sec. 35; Fry v. State, 203 S. W. Rep., 1096; Fry v. State, 78 Texas Crim. Rep., 435, 182 S. W. Rep., 331.

¶5 There is a clerical error in the original opinion in stating the number of checks that were introduced in evidence. The error is of no weight as bearing upon the legal questions involved, for the admissibility of other transactions depends not upon the number but upon their relevancy, and the greater the number the more cogent the evidence. Ruling Case Law, vol. 8, 201-203. People v. Marrin, 43 L. R. A., New Series, 754.

¶6 In the original opinion we passed upon the exceptions addressed by the appellant to the court’s charge, stating however, that we found no verified bill of exceptions complaining of the charge. In the statement that there was no such verified bill we were mistaken, due to the fact that in the record the exceptions to the court’s charge are twice copied in separate places, one without verification and the other with verification. We take occasion to say that in preparing records the clerk should avoid duplication of documents. It unnecessarily increases the cost of appeal, augments the burden of examining the record, and leads to confusion.

¶7 The exception to the seventh paragraph of the court’s charge, which paragraph is copied in the original opinion, involved the proposition therein mentioned, namely, that the use of the words “such checks” as it occurs in the charge was subject to the construction of the jury that the collateral transactions were before them for the purpose of enabling them to decide the appellant’s intent in the commission of the collateral offense. As stated, in substance in the original opinion, if the seventh paragraph of the charge stood alone and embodied the only instructions the jury had upon the subject of the effect which they would be authorized to give to evidence of the collateral transactions, the criticism *87 might he plausible. The paragraph does not stand alone, however, but supplements other instructions given at the request of appellant, enlightening the jury upon the subject. From appellant’s bill of exception No. 2, it appears that when the court ruled that the collateral transactions would be admitted in evidence, the court stated: “I will admit the warrants and documents offered for the purpose of showing, if they do show, if the jury thinks they are worth anything to the jury, they may consider it for the purpose, and only for the purpose, of showing, if it does show, system of doing business, motive and intention of the defendant.” Upon which the appellant, through his counsel, stated: “At this time defendant requests the court to instruct the jury they cannot convict the defendant because of the introduction of these documents or any other documents other than the one set out in the indictment.” To which the court replied, “Yes sir, I will do that,” and immediately gave to the jury the following verbal instructions: “That you may understand, gentlemen, about the document offered in evidence, that it is not the document—it is not the alleged forgery in the case we are now trying, of course, and could not be considered by you for any purpose against the defendant, unless you ■find it to be forgery, unless you find beyond a reasonable doubt that it was a forgery, and you cannot consider it for any purpose even then except those I have just named, and then you cannot convict the defendant on it, but you must find as a forgery the cheek in the ease we are trying before you can consider those others at all.”

¶8 After this proceeding, the bill of exceptions shows that the evidence with reference to the various documents and the documents themselves, were introduced in evidence, all of them, as we understand the bill, over appellant’s objections, which were named in the bill and with the understanding that they were limited and qualified as above indicated. The court also gave appellant’s special charge No. 1, instructing the jury in substance, to return a verdict in appellant’s favor on the issue of forgery unless they believed from the evidence beyond a reasonable doubt that appellant wrote the endorsement W. A. Moreland on the back of the check described in the indictment.

¶9 Appellant’s bill of exceptions No. 3 recites that the State’s counsel offered in evidence the testimony of the witness Brown “given upon a former trial, it being agreed by the defendant in person and by Ms attorney that it should be offered by the State.” The bill does not show that any objection was made to the introduction of the testimony, but does show that the appellant’s counsel at the time made a verbal request that the court limit its effect. Upon State’s counsel remarMng, in substance, that it was not necessary to limit the testimony of each witness as they went along, tha *88 court inquired of defendant’s counsel what limitation he desired, when defendant’s counsel said that the limitation desired was that “they .cannot consider the fact that Judge Fry endorsed his name across these checks in a saloon as any evidence that he forged the endorsement on the Moreland check,’’ but it could only be considered for the purpose of showing system, intent and motive. The court remarked, “I have never limited that testimony of Brown before and I believe the jury understands the matter of all the checks about as clearly as I can make it.’’ Exception was reserved to this action and remark of the court. Brown’s testimony was to the effect that appellant, in February; 1914, came to his place of business, which was a saloon in Ft. Worth, and endorsed to him a check for $70 payable to C. Hase, signed by I. B. Padgett; that he also cashed a similar cheek payable to James Hurd for $140. The court in approving the bill states that the “objection occurred after the counsel for the State, and defendant and the court had agreed before the jury that defendant’s objections to all the checks other than the Moreland check, would be considered as made at the time of their introduction, and after the court had orally limited the effect of said testimony as shown in defendant’s bill of exceptions No. 2 . . .; and said testimony was also limited in the court’s charge to the jury; and therefore, the two checks identified by the witness Brown were limited in like manner as all of the other checks.’’

¶10 It appears from bill of exceptions No. 2 hereinbefore discussed-that the two checks identified by Brown were included in the list of checks which that bill shows were introduced and qualified as therein stated, in all respects' mentioned in bill No. 3, except that part which suggested a special qualification covering the fact that the transaction occurred in a saloon. We therefore infer that that phase of the matter is subject of bill No. .3. The court having, as shown by bill No. 2, and by the accepted qualification of bill No. 3, limited the effect of the checks identified by Brown, we do not think there was harmful error in refusing to make special comment on the fact that Brown was in his saloon when he cashed the check for appellant.

¶11 Appellant’s special charge No. 4 was also given as follows: “You are instructed that you cannot convict the defendant in this case of a forgery of any of the cheeks introduced in evidence by the State other than the one set out in the indictment and you cannot .convict the defendant of passing any of the cheeks introduced in evidence by the State as forgeries other than the Moreland check copied in the indictment.’’ ■

¶12 We think, considering the charge in connection with the verbal and written charges given, the jury could not have been misled in regard to the purpose for which, under the rulings of the court, *89 they were authorized to use the evidence of collateral transactions, but to reverse on this contention, we think, would be violative of Article 743, C. C. P., wherein it is declared that the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the accused, or unless it appears that he has not had a fair and impartial trial.

¶13 Such special charges as were refused, we think, were properly refused. One of them related to a matter fully covered by the court’s charge, and the other touched a subject, in our opinion, not applicable to the ease.

¶14 The motion is overruled.

¶15 Overruled.