Whorton v. State , 69 Tex. Crim. 1 ( 1913 )

In this case appellant was prosecuted and convicted of forgery, and Presiding Judge Davidson has written an opinion reversing and remanding the case on several grounds, in none of which do we concur, but think the case should be affirmed.

We will first discuss those grounds upon which our Presiding Judge in his opinion thinks the case should be reversed. The first is, that no sufficient predicate was laid to admit the reproduction of the testimony of the witness Bryant, who had testified upon a former trial of this case. We think a sufficient predicate was laid and there was no error in admitting the testimony. The witness J.H. Erwin testified that he knew Bryant; that Bryant was a married man, and he was with him the day he and his family left for Georgia and shipped his household goods, and he knew he was moving from this State to Georgia. That he heard from him after he arrived at Talmon, Georgia; that Bryant had written him from that place and sent him a money order as he had promised to do. The testimony of this witness shows that Bryant moved permanently from Texas to Georgia, and instead of the authorities holding that such proof is not a sufficient predicate, we think they hold to the contrary. A careful reading of the opinions cited by our Presiding Judge will show that a permanent removal from the State, when shown, will admit the testimony, while a temporary absence will not, and in these views we cordially concur. But in this case a permanent removal was shown, and the court did not err in admitting the testimony. The authorities so hold: Conner v. State, 23 Texas Crim. App., 378; Evans v. State, 12 Texas Crim. App., 370; Pinkney v. State, 12 Texas Crim. App., 352; Garcia v. State, 12 Texas Crim. App., 335; Johnson v. State, 1 Texas Crim. App., 333; Post v. State, 10 Texas Crim. App., 579; Johnson v. State, 26 Texas Crim. App., 640; Parker v. State, 24 Texas Crim. App., 61; Peddy v. State,31 Tex. Crim. 547; Gilbreath v. State, 26 Texas Crim. App., 315. Many other cases could be cited, but they all adhere to the holding that when a witness is shown to have permanently removed beyond the jurisdiction, the evidence is admissible; otherwise when his absence is only temporary, and in this case the evidence shows that the removal was permanent, and when it is once shown that a witness has permanently removed beyond the jurisdiction of the court, it is not necessary to show his exact whereabouts on the day of the trial. To place such a burden on the State or defendant woud in effect exclude the testimony in almost every instance. We had the question before us in the case of Smith v. State, 66 Tex.Crim. Rep.; 148 S.W. Rep., 722, and there discussed it at length, and we adhere to the rule there laid down. This holding is not in conflict with any of the decisions cited in the opinion of our Presiding Judge, when read and digested in the light of the facts in those cases, unless it be the case of Ripley v. State, 58 Tex.Crim. Rep., and if this case is subject to the construction given it by our presiding judge in this case it is hereby overruled, and the rule declared to be as stated by Judge Hurt in Post v. State, 10 Texas Crim. App., 579; by Judge Simkins in Peddy v. State,31 Tex. Crim. 547; by Judge White in Conner v. State, 23 Texas Crim. App., 78, and by all the other judges who have occupied a position on this court and our Supreme Court, (except in the Ripley case, supra,) and that is, where the testimony shows by circumstances or positive evidence that the witness has moved permanently beyond the jurisdiction of the court, the testimony may be reproduced.

Neither can we agree with the opinion of the Presiding Judge that the testimony of the witness Barney Barker, as to what appellant told him, is inadmissible. The statement was an exculpatory statement, and not a confession. Barker testified: "When I called the defendant off there I asked him when was the last time he was in Weatherford, and he said he had not been in Weatherford since — I am not positive now whether the last day in March or the first Monday in March, but one or the other was the last time he had been here. Then I asked him if he had been here yesterday and he said no, he was not here since — either the last day of March or the first Monday in March. That was the day after the check was passed on the bank." The contention of the State was that defendant was in Weatherford and not in Fort Worth on this date, and in order for the State to obtain a conviction it would be necessary to prove that he was in Weatherford. So this statement would be wholly exculpatory, and in no sense a confession of guilt; therefore, it would not come within the rules of the statute relating to confessions. Mr. Bouvier in his Law Dictionary defines a confession: "The voluntary declaration made by a person who has committed a crime to another of the agency or particupation which he had in the same. An admission or acknowledgement by a prisoner that he committed the crime with which he is charged." In Cyc., vol. 8, page 562, a confession is thus defined: "The acknowledgement of some fact, of a fault or wrong, or of an act or obligation adverse to one's reputation or interest; an admission of something done antecedently. At common law an admission of a cause of action. In criminal law, a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it; the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same; a person's declaration of his agency or participation in a crime; an acknowledgement of guilt; the acknowledgement of a crime or fraud." In this work are cited many authorities, among which is People v. Miller, 122 Cal. 84, wherein the Supreme Court of that State said: "In our law the term admission is usually applied to civil transactions, and to those matters of fact in criminal cases which do not involve criminal intent; the term confession being generally restricted to acknowledgement of guilt," citing Greenleaf Ev., Sec. 170.

In the Am. Eng. Ency. of Law, vol. 6, p. 521, the definition is thus given: "A confession is a voluntary admission or declaration by a person of his agency or participation in a crime.

"The term ``confessions' is not the mere equivalent of the words ``statements' or ``declarations.' A statement or declaration to amount to a confession must be inculpatory and not exculpatory in its nature. Thus statements made by persons indicted together for the same offense, by which each charges the other without inculpating himself, and makes no reference to anything done in common as charged, are not confessions.

"Confessions as distinguished from admissions are acknowledgements of facts criminating in their nature, and not mere declarations against interest.

"Moreover, a confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgements of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions rather than confessions." Under this text are cited authorities from almost every state in the Union.

In Words Phrases the word "confession" is said to mean: "A ``confession' is a person's declaration of his agency of participation in a crime. The term is restricted to acknowledgements of guilt. A confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgements of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions, rather than confessions. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession." On pages 1418 and 1419, vol. 2, will be found a long list of authorities supporting this text.

We have cited these authorities, for in our own decisions there is some conflict. Some cases hold that exculpatory statements are included in the statute governing the admissibility of confessions, while in a number of other cases the law is held as announced in the above authorities. Our present Presiding Judge in a well-considered case announced the law in accordance with these decisions. In the case of Ferguson v. State, 31 Tex. Crim. 93, he said:

"The statute, article 750 of the Criminal Procedure, relates to confessions only, and does not extend to nor include within its meaning and provisions statements exculpatory of the defendant. A confession is inculpatory evidence, which connects or tends to connect the defendant, either directly or indirectly, as a guilty participant in the offense charged. Quintana v. The State, 29 Texas Crim. App., 401; Willard v. The State, 26 Texas Crim. App., 126; Eckert v. The State, 9 Texas Crim. App., 105; Andrews v. The State, 25 Texas Crim. App., 339.

"The statement made by defendant did not admit his guilt, and was not so intended by him when he made it. It neither connected nor tended to connect defendant with the theft, but on the contrary, it was intended to exclude and rebut such inference. Instead of being an admission or confession of his guilt, it was intended as a denial of that fact. Same authorities.

"Such statements are made as well for the purpose of showing the absence of guilt as to manifest an innocent connection with the possession of the alleged stolen property by a defendant, and are intended to operate as exculpatory of guilt and crime. This character of evidence is elicited for the purpose of explaining the defendant's possession of the property, when his right thereto is called in question. While contradictory statements made by a defendant, as to his possession of property recently stolen, may be given in evidence, yet such statements have not been held to be ``confessions' of guilt under the statute. If such accounts are to be treated as confessions of guilt, it would not devolve upon the State to disprove them, as a prerequisite to a conviction, nor would the court be authorized or required to charge the jury that such account must be disproved in order to warrant a conviction. Eckert v. The State, 9 Texas Crim. App., 105." Many cases besides those cited in this opinion might be referred to but we deem it unnecessary, as the rule is so clearly so stated in the Ferguson case. However, in the case of Morales v. State, 36 Tex.Crim. Rep., the Quintana case in 29 Texas Crim. App., 401, and other cases holding that the confessions ofa defendant made while under arrest, although not taken in conformity with the statute, were admissible, were overruled, but the court expressly limited its action to those instances where the statements offered were confessions of guilt, the court in the Morales case stating: "The matter inquired about in this case was a confession, and it is not necessary here to discuss the question involved in the cases above referred to as to whether the statements there made by the defendants were in the nature of a confession or not." In the Morales case the court only holding that a statement in itself of a confession of guilt was inadmissible if not taken in conformity with the statute, even though the defendant became a witness, pretermitting altogether a discussion of whether or not exculpatory statements were included in the statute governing admissibility of confessions. And yet in some instances this case has been sought to be used as excluding exculpatory confessions, when a careful reading of it will demonstrate it does not so hold. This question is again discussed in Parks v. State, 46 Tex.Crim. Rep., and it again held if the statements are inculpatory they are not admissible, and in some of the cases it may be said that the language used is broad enough to include exculpatory as well as inculpatory statements under the statute governing confessions, and because of these two conflicting line of decisions in our own court, we have made as thorough investigation of this question as the books at our command would permit, and we have come to the conclusion that the great weight of authority upholds the opinion of Presiding Judge Davidson in the Ferguson case, supra, and the statutes governing the admissibility of confessions do not apply to nor include statements which are wholly exculpatory, even though the State should introduce other evidence showing such exculpatory statements are false. That such is the correct rule we have no doubt, for the reasons for the adoption of a statute excluding confessions of guilt, except under given circumstances, cannot and in no sense do or would apply where a defendant makes a statement which, if true, would conduce to show his innocence. Mr. Chamberlayne, in his work on Modern Law of Evidence, vol. 2, beginning on page 1863, treats of this question at length, among other things saying:

"There is no branch of the law of evidence in such inextricable confusion as that relative to confessions. The general rule that a confession, a statement by one accused of crime directly or by necessary inference admitting his guilt, is receivable in evidence, provided it complies with certain requirements of procedure, is not questioned in any quarter. The difficulty with regard to the matter is, in large measure, due to the fact that an attempt is being made, in this connection, on certain alleged grounds of public policy, rigidly to maintain rules of procedure, as matters of substantive law, which are hard to sustain in point of reason. Just here has been, as it were, a fierce struggle in the law of evidence between the formalism of the past and the rationalism of the future. * * *

"It follows from the very definition of a confession that it must, as a total, incriminate the declarant, as to the crime charged in the indictment. It is not sufficient that the alleged confession should be a statement by one accused of crime admitting that he committed the overt act, if at the same time he sets up a justification, as self-defense, or other exculpation, so that, when the entire effect of the statement is regarded, it is exculpatory. Such a declaration as has been described while admitting a fact is, in effect, a denial of the liability legally arising from the existence of the fact admitted. It is not therefore a confession, and is accordingly admissible under conditions which would exclude an actual confession, i.e., an inculpatory statement." Under this text in Mr. Chamberlayne's work will be found collated an exhaustive list of authorities.

As the statement testified to by the officer was wholly exculpatory, the court did not err in admitting it. We have written at length on this proposition, as some of our decisions have used language that one could hardly tell whether exculpatory statements were included in the term "confession" as well as inculpatory statements, and as in our opinion only inculpatory statements are included, it necessarily follows that it is only when the statement is inculpatory in its nature it is inadmissible, unless it has been reduced to writing in accordance with the requirements of our Code. If the statement is wholly exculpatory, the State may introduce it as a circumstance in the case to be considered with the other evidence.

Again, in this case, we do not think the evidence would show that defendant had been apprised he was under arrest. The officer testified: "Wilson Crawford pointed the defendant out to me, and I walked down there where the defendant was; his father was standing there talking to some one else. I shook hands with the defendant and told him to come off, I wanted to talk to him a little bit, so we walked back towards the bank." The defendant asked permission to cross-examine the witness, and he testified: "I am an officer and was at that time. I had not told him that he was arrested. I just called him off there to talk with him. I had him in my custody or charge when I called him off to one side. If he had tried to escape I would not have permitted it. I had him in custody for the alleged charge for which he is on trial now." On re-direct examination he testified: "I had not then told him he was under arrest, nor had I said anything to him at that time about being under arrest. I called him off there to talk to him, to find out when he was here in Weatherford; had made no statement to him about what I wanted to see him for." There is nothing in the record to indicate that appellant knew that Mr. Barker was an officer, and the record discloses that nothing was said that would lead him to believe or in any way apprize him that he was under arrest, and the testimony for this reason would be admissible. Martin v. State, 57 Tex.Crim. Rep.; Grant v. State, 56 Tex.Crim. Rep.: Craig v. State, 30 Texas Crim. App., 619; Frye v. State, 66 Tex.Crim. Rep.; 146 S.W. Rep., 199. In addition to this, if by any construction of the language used by appellant, it could be held to be a confession of guilt, which we think is impossible, and if it could be held that he had been made aware that he was under arrest, yet in a few moments after the conversation with Mr. Barker, appellant, after he had been notified by the county attorney that he was under arrest, charged with forging this check and that any statement he might make could be used against him, makes the same statement to the county attorney in a more amplified form; it was reduced to writing and signed by appellant, and complies in every particular with the statute governing the admissibility of confessions. So in no event could the testimony of Mr. Barker present reversible error.

Again, we cannot agree with our Presiding Judge when he holds that the trial court committed error in permitting Bill Leatherwood to write his name on a slip of paper in the presence of the jury. The bill of exceptions shows by its recitals, it being bill No. 3, that when Bill Leatherwood was testifying, and had testified that he did not write his name on the back of the forged check, which our Presiding Judge correctly holds was permissible for him to do, the county attorney then asked him to write his name, and he did so; that it was then offered in evidence, but defendant objected, and the court did not permit such signature to be introduced in evidence, the bill reciting: "The jury did not see, examine nor use Bill Leatherwood's signature for any purpose." Under such circumstances we do not see how the jury could have used it as a "standard of comparison." The bill itself says the jury did not see the signature. The fact that it was written while the witness was testifying, but excluded by the court from their consideration when the defendant objected, would not authorize us to presume, in the face of the recitals of the bill itself, that they saw something the record says they did not see, examine nor use forany purpose.

Neither can we agree with our Presiding Judge in holding that the check given by Mr. Cockburn to appellant was inadmissible for the purpose for which it was admitted. While defendant objected on all the grounds stated in our Presiding Judge's opinion, yet if the check was admissible for any purpose, these objections would not exclude it. Our Presiding Judge correctly holds that Mr. Cockburn was properly permitted to testify that he had not written the forged check nor authorized any one else to do so, and he did so testify. No one disputed that fact; in fact, there is no contention in the record that Mr. Cockburn had in fact signed the check, the only contention of appellant being that he was not the person who forged the check. Therefore, the check could and would serve no purpose as a standard of comparison with a check that was in fact written by Mr. Cockburn. However, the check was admissible for another purpose. This was a case of circumstantial evidence. No one saw appellant forge the check, if he did do so. According to the State's evidence, appellant went to Weatherford on the 26th day of April, (and that he was in Weatherford on that day is conclusively shown to our minds by a number of witnesses) and went into the Club Restaurant for his dinner; that while in this restaurant he asked for a blank check on the First National Bank, and one was torn out of the back of the book and given him. This check book had been printed to be used by "Patrick Sliger" and their names appeared thereon. No other place in the town had blank checks with "Patrick Sliger's" names thereon, and the person in charge of the restaurant says "He had not given anybody else a check that day or any other day out of this First National Bank book," — the Patrick Sliger book. The forged check was presented to and cashed by the First National Bank, a short time after Mr. Crawford says defendant obtained this blank check from him. The bank officer who cashed the check says he was busy, and cannot positively identify the defendant as the person who presented the check for payment, and to whom it was paid, but he thinks he is the person. There are other circumstances in evidence, but these facts and circumstances are sufficient to show that it was permissible as a circumstance in the case to prove that Mr. Cockburn had theretofore given appellant a check, and he had cashed it at this bank, to trace to appellant knowledge that Mr. Cockburn did his banking business with the First National Bank, and that bank would cash checks signed in his name, and also that the person who signed Mr. Cockburn's name to the forged check had probably seen Mr. Cockburn's signature. All these were circumstances admissible in a case depending wholly on circumstantial evidence. In Noftsinger's case, 7 Texas Crim. App., 301, this court says: "In a case like the present one, depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived." (Cooper v. State, 19 Tex. 449; Barnes v. State, 41 Tex. 42; Hamby v. State, 36 Tex. 523 [36 Tex. 523]; Black v. State, 1 Texas Crim. App., 368.) And in such cases the nature of the case in many instances demands a greater latitude in the presentation of the evidences of the circumstances than where a conviction is sought upon direct and positive testimony. (Ballew v. State,36 Tex. 98; Preston v. State, 8 Texas Crim. App., 30; Bouldin v. State, 8 Texas Crim. App., 332; Grimmett v. State, 22 Texas Crim. App., 36; Simmons v. State, 10 Texas Crim. App., 131; McGuire v. State, 10 Texas Crim. App., 125. This has not only always been adhered to as the rule of decision in this court, but such is said to be the correct rule by Mr. Wharton in his work on Criminal Evidence, Sec. 877, where a long list of authorities will be found in the note.

We agree that our Presiding Judge may be correct in holding that the check and attendant circumstances would not probably have been admissible as a "standard of comparison" and the authorities cited by him would support that holding, but in this case it was not necessary for that purpose, could not have been useful for that purpose, and was not introduced for that purpose, as there was no contention that Mr. Cockburn signed the forged check. If there had been such a contention in the case, then its introduction might have been harmful, but as there was no such contention, it could not have been hurtful in that respect, and it was admissible as a circumstance in the case tending to shed light on whether or not appellant forged and passed the check on The First National Bank.

The only other question discussed by our Presiding Judge is the failure of the court to give the special instructions requested by appellant, as the State had introduced the statement of defendant wherein he claimed that he was not in Weatherford on the day the blank check was obtained from the Club Restaurant, filled out and presented to the bank for payment, but was in Fort Worth. The court charged the jury on alibi, instructing them: "Among other defenses set up by the defendant is what is known in legal phraseology as an alibi; that is, that if the offense was committed as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, you will find the defendant not guilty." This presented the issue specifically as made by appellant's statement, and they find against him, necessarily finding, in doing so, that the statement he made that he was in Fort Worth and not in Weatherford, was not true, and no other submission was necessary, and we are of the opinion the court did not err in refusing the special instructions asked in regard to this issue. The statement made by the defendant to the county attorney reads as follows:

"Weatherford, Texas, April 27, 1911.

My name is O.L. Whorton. The following is my voluntary statement made to Bernard Martin, County Attorney of Parker County, Texas, as to my connection with the offense of forgery of a cheek on G.W. Cockburn for $43.00 on the 26th day of April, 1911, in Parker Co., Texas, and I am making this voluntary statement to the said Bernard Martin after being told and warned by him that I did not have to make any statement at all, and after being told and warned by him that any statement that I might make in connection with said offense might be used as evidence against me upon the trial for the charge herein inquired about, and that the same could not be used as evidence for me on any such trial. About 10 o'clock yesterday I was with Dave Green; we were about 3 miles from Cresson. I think we were in Parker County. I am not sure we were in Parker County; it might have been Hood County. I had been working for Dave Green a week. I went to work for him yesterday was a week ago. I went to Fort Worth yesterday, the 26th of April. I got to Fort Worth about 1:30 o'clock. I went to Fort Worth yesterday from Dave Green's house in my own buggy. No one was with me. My buggy is at Fort Worth now. I paid by R.R. fair on the train this morning to Weatherford. I did not have time to get a ticket. The last time I was in Weatherford before today was the last day of March, 1911. I have seen Crawford, who worked at the Club Restaurant, lots of times. I have been in the said restaurant several times when Crawford was in there. I have seen him waiting on people in the restaurant a good many times. I have seen him in the restaurant enough to know him when I go in there. I have got my meals several times at the Club Restaurant this year. I know G.W. Cockburn, who lives about 3 miles south from Agnes. I have known him about 5 or 6 years. I worked for him some in March, 1911. Mr. Cockburn has paid me in checks and also in cash. I remember he paid me some time in Feb. or Jan. of this year with his check, and I cashed it myself over at the First National Bank here in Weatherford; it was drawn on said bank. I do not remember the amount. It seems like he paid me with a check once besides this time. I know Bill Leatherwood. I have known him about 10 years. I have been to his house. Dave Green did not pay me anything for my work this last week; he still owes me for all my work. I don't know when he is going to pay me. I don't know how much he is owing me for my work; there was nothing said about my pay. I wrote the names of G.W. Cockburn and Bill Leatherwood on the envelope which I had in my pocket, which was turned over to John Brown and Barney Barker. I think I wrote their names while standing there in the First National Bank this evening. I also done the marking and scribbling on the said envelope while at the bank or after I left the bank. No one asked me to write their names on the envelope. I believe I shook hands with Walter Bryant this morning in Fort Worth. I stayed with Carl Willoughby last night in Fort Worth — he is a street car conductor — 1503 East 20th Street is his residence. I ate supper and breakfast at his house. I ate dinner yesterday on 13th Street in Fort Worth; I don't remember how much I paid for it.

"Tom Harris, constable at Cresson, paid me $3.00 Tuesday of last week. He is the last man that has paid me any money. B.F. Bone, at Cresson, paid me $2.00 or $3.00 week before last — he is a ranchman.

"I had all my money in silver yesterday when I left Dave Green's. I guess I had $8.00 or $10.00. O.L. Whorton.

"Witness my hand this the 27th day of April, 1911."

The State's contention was that appellant was in Weatherford until 3:30 the evening of the 26th, when he took an eastbound train and went to Fort Worth; that while in Weatherford, before taking the train for Fort Worth, he had put his horse and buggy in a feed-yard in Weatherford; gone to the Club Restaurant, eat his dinner, and obtained the blank check; that he then filled out the check in Mr. Cockburn's name and cashed it at the bank, thereafter taking the train for Fort Worth. The State proved that when he left Dave Green's he said he was going to Weatherford, and left traveling in that direction; the State proved that his horse and buggy were placed in Bank-head's wagon yard in Weatherford by appellant on that day, and that his horse and buggy were not in Fort Worth; the State proved he eat his dinner on that day in the Club Restaurant in Weatherford, and obtained a blank check; he was seen in Weatherford on that day by a number of people who knew him; he was seen at the depot in Weatherford when the east-bound train arrived going to Fort Worth, and when arrested there was found on his person a receipt for railroad fare for an amount corresponding with the fare from Weatherford to Fort Worth. Many other facts and circumstances were introduced in evidence by the State, which showed the statement of appellant as to his actions and whereabouts on the 26th of April were wholly false. As in the statement of appellant there are no incriminating circumstances upon which the State could rely for a conviction, the court correctly submitted the only issue made by his exculpatory statement, and that was whether or not he was in Weatherford on the day of the transaction. This question has been frequently before this court, and it has always been held that it is only where there are both exculpatory and inculpatory statements in a confession, and the State relies alone on the inculpatorystatements for a conviction, that this charge need be given as regards the exculpatory statements contained therein. In the case of Slade v. State, 29 Texas Crim. App., 381, in discussing this question, this court held, speaking through Judge Hurt: "In the Pharr case the trial court had submitted to the jury two charges relating to the confessions or statements of the accused, the last being calculated to neutralize the first; the first being correct and the last wrong. The charge rejected in this case is in the language of the correct one in Pharr's case. Now, it is not decided in the Pharr case that, though correct, such a charge must always be given, when requested, in every case in which the State introduces in evidence the admissions of the accused. This question was not before the court in the Pharr case. Under what circumstances must such a charge be given? This question is answered in Jones v. The State, ante, p. 20. When the State relies for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpating or mitigating matters, such a charge should be given. In this case the State did not rely upon confessions or admissions alone for conviction. These were introduced mainly for the purpose of impeaching the accused, who testified in the case." As hereinbefore stated, and as shown by the statement of appellant herein copied, there were no inculpatory statements upon which the State could rely for a conviction. It was introduced merely to show that appellant had not spoken the truth when first challenged about the matter, as a circumstance in the case to be considered by the jury for its worth, and Judge Hurt says under such circumstances no such charge is called for. In the case of Trevenio v. State, 48 Tex.Crim. Rep., this court held, speaking through Presiding Judge Davidson, in a case almost similar to this: "The statements were in the nature of an alibi, and exculpatory entirely, showing that he had not been in Texas, which was evidently made for the purpose of defeating the case on the question of limitation, or rather to induce the grand jury not to return the bill, on the theory that he had never been in Texas, for the indictment was not presented until more than five years after the alleged theft. In Slade v. State, 29 Texas Crim. App., 381, the same rule is endorsed, as announced in Jones' case, supra: but the court went farther, after stating the rule, and said: ``In this case the State did not rely upon confessions or admissions alone for conviction. They were introduced mainly for the purpose of impeaching the accused, who testified in the case. There was a large mass of evidence adduced by the State in rebuttal of these confessions and admissions.' In such state of case, the charge is not required. The Slade case is more in consonance with this case. There is not a criminative fact stated by appellant in his testimony before the grand jury. On the contrary, every word is entirely exculpatory and a complete denial of his connection with the transaction in any manner whatever; and that he was neither in Texas nor Guadalupe County in 1898, at the time of the theft, and had never been in Texas after he was a boy, until 1901. The court charged very fully in regard to the question of alibi."

In this case the court charged on alibi, and if that was a sufficient presentation of the issue in the Trevenio case, it certainly would be in this case. Many other cases could be cited, but we do not deem it necessary.

These are all the questions discussed by our Presiding Judge in his opinion as handed us, and at first we intended only to enter our dissent as to the two first propositions herein discussed, this opinion may seem a little irregular, for a thorough study of the case convinced us he was wrong in his conclusion and deductions on all the propositions and, therefore, necessarily wrong in his application of the law. And as we concluded the case should be affirmed, we will briefly notice the other questions.

The court did not err in refusing to quash the indictment. It is drawn in the form frequently approved by this court, and the form laid down by Judge White in his Penal Code in Sec. 882. In the section following 882 will be found a long list of cases collated. The fact that "A.D." was left out just before the year "1911" is immaterial and the criticism hypercritical.

The fact that the indictment did not allege that the check was endorsed "Bill Leatherwood," while the check was so endorsed when introduced in evidence, presents no error. The banker testified that when the check was presented to him it was not endorsed; it was a completed instrument without the endorsement. The endorsement was made at the bank at the banker's request. Crayton v. State,47 Tex. Crim. 88; Bader v. State, 44 Tex.Crim. Rep., and cases there cited.

The envelope found on appellant and the notations thereon were properly admitted, they being found in his possession. As were also the letters testified to by Miss McAllister. She stated she knew defendant's handwriting; that the letters were written by him to her, and such letters were properly admitted as standards of comparison with the writing in the forged check. Phillips v. State, 6 Texas Crim. App., 364; Williams v. State, 27 Texas Crim. App., 66; Hughes v. State, 59 Tex.Crim. Rep.; 129 S.W. Rep., 837.

The defendant objected to the introduction of the statement of appellant in evidence on the ground that while it showed on its face that he was informed that he was charged with forgery, yet appellant was not informed that he was charged with passing a forged instrument. As there were two counts in the indictment, the statement would be admissible as to the count charging him with forgery. The court stated he would admit the statement as to the count charging forgery, and in his charge limited the consideration of the jury of this statement to that count alone at the request of appellant, and as he was convicted of this offense, this presents no error. The complaint of the charge of the court in so limiting this testimony presents no error, for this paragraph of the charge is almost in exact language of a charge requested by appellant, and if it should be held to be upon the weight of the testimony, the error, if error it be, was invited by appellant, and he cannot be heard to complain. Presiding Judge Davidson discusses this question fully in Carbough v. State, 49 Tex.Crim. Rep., and collates the authorities so holding, and this has been the rule of this court since the rendition of that opinion.

The defendant being convicted of forgery, and not passing a forged instrument, we do not deem it necessary to discuss those parts of the motion relating solely to the charge as applied to passing a forged instrument. They could have had no effect or bearing on the jury in passing on the forgery count.

Two of the special charges requested by appellant were given, and the others, insofar as they were the law of the case, were fully covered by the court in his main charge.

The evidence amply supports the verdict, and the judgment is affirmed.

Since writing the above opinion, Presiding Judge Davidson has withdrawn his original opinion, and wrote again in this case, but we do not deem it necessary to add anything further.

Affirmed.