Fry v. State , 86 Tex. Crim. 73 ( 1918 )

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.

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 Tex.Crim. Rep.; Fische v. State, 54 Tex. Crim. 55; Wharton's Criminal Evidence, vol. 1, p. 135, sec. 35; Fry v. State, 203 S.W. Rep., 1096; Fry v. State, 78 Tex. Crim. 435, 182 S.W. Rep., 331.

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.

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.

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 might be 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 check in the case we are trying before you can consider those others at all."

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.

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 his 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 remarking, in substance, that it was not necessary to limit the testimony of each witness as they went along, the 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 check 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."

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.

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 checks 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 checks introduced in evidence by the State as forgeries other than the Moreland check copied in the indictment."

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, 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.

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 case.

The motion is overruled.

Overruled.