McGlasson v. State , 38 Tex. Crim. 351 ( 1897 )

Appellant was convicted of forgery, and his punishment assessed at imprisonment in the penitentiary for a term of two years; hence this appeal.

The forgery charged was that of a note for $660, dated Troy, Texas, November 5, 1895, and due January 1, 1897, bearing interest at 10 per cent per annum. The note was made payable to W.D. McGlasson, or order, at the office of McGlasson Co., at Troy, Texas, and purported to have been executed by W.T. Clark. Said note also retained a vendor's lien on 100 acres of land, part of the C. Bendle survey, in Bell County.

The testimony for the State showed, by W.T. Clark, himself, that the signature, "W.T. Clark," was a forgery, and that the handwriting, as testified by experts, appeared to be that of the appellant. The testimony on the part of the appellant tended to show that the body of said note was written by appellant, and that L.M. Cann signed the name "W.T. Clark" to said note, and Clark, who was present, authorized the same, and affixed his mark thereto, in connection with his name. In addition to this, there was other testimony, of a collateral character, tending to corroborate and support the respective theories of the parties.

Appellant asked the court to instruct the jury to return a verdict of not guilty, on the ground that no venue had been proved; but this the court refused to do, and appellant reserved his exception to the action of the court. The question presented as to this bill of exceptions is, does it sufficiently comply with the amendment to article 904 adopted by the Twenty-fifth Legislature? See Laws 25th Leg., p. 11. The act in effect provides that, as to the venue in all cases, the court shall presume that it was proved in the court below, unless it was made an issue there and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge, or proved up by bystanders, as is now provided by law, and incorporated in the transcript, as required by law. It occurs to us that this statute requires this court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue, or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law. If, however, it be conceded that the bill, as contained in the record, would require us to look to the statement of facts to see whether or not the venue was sufficiently proved, then in our opinion the evidence sufficiently established the venue of the case. The testimony showed that appellant, at the time of the alleged forgery, was doing business at Troy, in Bell County; the note bore the date, Troy, Bell County, November 5, 1895. It was made payable at the office of appellant, at Troy, in Bell County. Rotan, to whom the note was negotiated in December, 1895, shortly after its purported execution, stated that he lived in Waco, which was connected by railroad with Troy, Bell County, and about an hour's ride therefrom; that in December, 1895, the defendant came from Troy, in Bell County, on the "Katy Railroad," to Waco, and came to his office at the bank in Waco, and told him he was just from Troy, and brought the note with him which he is charged in this case with forging, and he there received from him said note. This, in our opinion, was sufficient proof of venue, aside from the testimony of appellant himself, which tends to corroborate the State's evidence on venue in every particular.

Appellant offered to prove by himself, when he was on the stand as a witness in his own behalf, that on the 19th of February, 1896, he gave to E. Rotan (the State's witness, to whom the proof showed the note in question had been passed, and after said Rotan had testified as a witness to important criminating facts) a bill of sale to defendant's entire stock of merchandise, worth $15,000, and to sixty-five bales of cotton, and 12,000 bushels of oats, and $72,000 worth of promissory notes, as collateral security to pay the said Rotan the sum of $20,000; and defendant offered to prove that that was all that he owed the said Rotan or his bank; and that said Rotan had always since refused to have a settlement with defendant to see how their accounts stood with each other. On objection by the State, said testimony was excluded, and defendant excepted to the same. The relevancy of this testimony is not made manifest by the bill of exceptions, and it occurs to us that there was no error in the action of the court in excluding the same. We can not see how said testimony would tend to disprove the fact of forgery charged against the appellant. Concede that he surrendered to Rotan all of his assets, and that Rotan was his sole creditor (which, however, is not shown in the bill), and that his assets far exceeded his liabilities, still this testimony would not, in the absence of some other showing, have any bearing on the question as to whether or not appellant forged the note in controversy. The mere fact that Rotan had testified to important criminating facts would not of itself make such testimony admissible. It may be possible that Rotan may have testified to a state of facts which made said evidence relevant; but the bill does not show this, nor does the bill show the object of this evidence. In our opinion, the court did not err in excluding said testimony.

On the trial, appellant presented the following bill of exceptions to the introduction of testimony on the part of the State: "Be it remembered, that on the trial of the above entitled and numbered cause, when the State's witness E. Rotan was on the witness stand, he was asked the question by the State's counsel, if he ever showed to W.T. Clark the note charged to have been forged by the indictment in this cause, together with another note in the same amount, purporting to be made at the same time and place, and purporting to be signed by the same party, and, if so, when was it, and what did said W.T. Clark say with reference to executing said notes or authorizing any other person to do so for him, to which question the defendant objected, on the ground that what said W.T. Clark said in the absence of defendant was hearsay and incompetent for any purpose; but the court overruled all of said objections, and permitted the said E. Rotan to answer said question as follows, and permitted said answer to go to the jury as evidence. His answer was as follows, to wit: 'It was shortly after defendant's business failure I saw W.T. Clark, and told him I had some notes against his land; but at this time I did not tell him the amount of the notes. A few days after this I saw him again, and showed him the notes, or told him the amount of each note; and he repudiated them, and said he did not sign them, or authorize any other person to do so. He said that he had signed notes against his land, but there were five of them, and of smaller amounts. He always repudiated these two $660 notes when talking to me after I told him the number of notes and their amount." Defendant then and there, in open court, excepted to the ruling of the court in overruling his objections to the aforesaid question, and excepted to the ruling of the court in permitting said answers to go to the jury, and he now tenders this his bill of exceptions," etc.

The first question that presents itself with reference to this bill is the sufficiency of the same to show that said testimony was admissible. We understand the rule on this subject to be as follows: The allegations of a bill of exceptions should be full and explicit, so that the matters presented for revision may be comprehensible, without recourse to inferences. Inferences will not be indulged to supply omissions in the bill of exceptions. The bill must be so full and certain in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error. It must sufficiently set out the proceedings and attending circumstances below to enable the appellate court to know certainly that error was committed. See Willson's Crim. Proc., sec. 2368, and authorities cited. When a bill of exceptions is taken to the admission of evidence, the bill should clearly disclose the ground or grounds of objection made to the evidence; otherwise, it is not entitled to be considered. The grounds of objection not so stated will ordinarily be considered as waived. Bills of exception should be full, clear, and specific, setting forth distinctly every fact essential to an understanding of the matters sought to be presented thereby. See Willson's Crim. Proc., sec. 2516, and authorities there cited; Cline v. State, 34 Tex.Crim. Rep.; Gay v. Railroad (Texas Sup.), 30 S.W. Rep., 543; Buchanan v. State, 24 Texas Crim. App., 195; Smith v. State, 4 Texas Crim. App., 627.

Now, the question presented is: Does said bill of exceptions make it sufficiently appear that said evidence was not admissible, it being conceded that the onus was upon the appellant to show by his bill the inadmissibility of said testimony? Of course, if it obviously appears from the bill that in no state of case was said testimony admissible, then it should not have been admitted. But suppose there is a contingency in which we would conceive the testimony is admissible; then we would be confronted with the principal difficulty in complying with the rules above laid down. In this particular case we can understand how, in a certain state of case, some of the testimony embodied in the bill was relevant. For instance, if the State's witness W.T. Clark had worn (as he did), while on the stand on behalf of the State, that he did not sign or authorize appellant or Cann to sign said note, and then the defendant, in order to impeach him, had shown by some other witness that he had stated to them, subsequent to the transaction, that he had authorized Cann or appellant to sign said note, in such state of case, under the rulings of this court, it would have been competent for the State, in support of the witness Clark, to show that recently after the alleged forgery, or recently after it had come to his knowledge that the execution of said note was attributed to him, he had stated that he did not execute said note. Such evidence would be competent on the part of the State. Now, is there enough in the bill to exclude the idea that the contingency occurred to render said testimony admissible, and was said testimony, as shown, admissible for the purpose above indicated? It may be admitted that the bill does not directly do this, but, if it indirectly shows that the contingency had not occurred, it would still be sufficient. The bill shows that the witness answered "that, shortly after defendant's business failure, said witness Rotan saw W.T. Clark, and then told him that he had some notes against his land; and, a few days after this, witness saw him again, and showed him the notes, and he repudiated them, and said he did not sign them or authorize any other person to do so. He stated that he signed certain five notes against said land, but they were for small amounts." He always repudiated these two $660 notes when talking to Rotan, after he told him the number of the notes and their amounts. Unquestionably, the testimony was hearsay, and the objection urged to its admission was good, unless said evidence comes within the exception above indicated. The answer of the witness does not connect it with the transaction, to wit, the alleged forgery, and its first discovery by the witness, so as to show that the statements by Clark were made to the witness Rotan recently thereafter. Indeed, the testimony is made to cover almost any space of time from the discovery up to the trial, because the witness, by his answer, says that Clark always repudiated said two notes of $660. This testimony given in this general way, it occurs to us, was admissible under no state of case. Under the rule above laid down, we have only gone to the extent of admitting this character of testimony in support of an impeached witness, where the statements were made recently after the event. See Bailey v. State, 9 Texas Crim. App., 99; Williams v. State, 24 Texas Crim. App., 637; Dicker v. State (Texas Crim. App.), 32 S.W. Rep., 541; Campbell v. State,35 Tex. Crim. 160. In our State, in this regard, we have gone beyond the rule laid down by the text writers on this subject generally. See 1 Whart. on Ev., p. 570; 3 Jones on Ev., arts. 872, 873.

Furthermore, in regard to this bill of exceptions, it shows that the witness Rotan was on the stand for the State. It is not shown that he was used in rebuttal to support the witness Clark. It fails affirmatively even to show that he stated that the declarations or statements of Clark were recently after he discovered the alleged forgery, and besides, as stated above, he does not confine the statements of Clark to any particular time, but makes him state that he always repudiated signing the notes. While the bill should have been drawn more accurately, presenting the inadmissibility of said testimony, yet we gather enough from it to suggest that the contingency on the part of the State to offer such supporting testimony had not occurred, and that said testimony as offered was hearsay, and did not come under the exception above indicated, and was obnoxious to the objection urged by appellant. If the bill did not speak the truth, it was the duty of the court, in approving the bill, to show that the contingency had occurred that made said evidence admisslible, and thus relieve the question of difficulty. It is true there is an attempt by the State, in reply to the motion for a new trial, to show that said testimony was properly admitted by the court in support of the witness Clark, after he had been impeached by the defendant; but under no rule that we are aware of are we permitted to look to this matter to help out the bill of exceptions, nor can we look back to the statement of facts in this connection. If we were permitted to do this, it would appear therefrom that the testimony of Rotan, which was objected to, was original testimony, offered by the State. Looking to the bill itself, we think it makes a prima facie case, at least of the inadmissibility of said eivdence. In our view of the case, this improperly admitted testimony was upon a material issue. In fact, the vital question raised by the defendant was as to the authority of Clark to defendant and Cann to execute said note. This was a disputed question, and it was not competent for the State, by original testimony, to support the witness Clark, to the effect that he had stated (shortly after the failure of appellant in business, when he first saw said note) that he had not executed the same, or authorized its execution, and that he had since always repudiated said note as having been executed without his authority. This improper and illegal testimony was thrown into the scale against the appellant, and we can not tell what effect it may have had upon the jury. Its purpose was to corroborate Clark, and doubtless it was so regarded by the jury.

We think, under the circumstances of this case, that the court acted properly in charging on the question of principals, in view of the defendant's evidence that he and Cann together executed the note in question. As to whether the court was in error in refusing the requested instructions on the questions involved in appellant's bill of exceptions number 7, in regard to what transpired in the jury room, the same is not likely to occur on another trial of the case; so we pretermit any discussion thereof.

For the error of the court in admitting the testimony of Rotan, as to the statements of Clark to him, denying the execution of said note, the judgment is reversed and the cause remanded.

Reversed and remanded.