Mallory v. State , 37 Tex. Crim. 482 ( 1896 )

Appellant was convicted of passing a forged instrument, and prosecutes this appeal. This is a companion case to cause No. 1016, Mallory v. State (just decided), 36 S.W. Rep., 750. The record in this case is before us in quite a different shape from that in the former case. The witness, Durham, while testifying for the State, over the objection of the appellant, was permitted to state that he obtained from E.A. Yost, J.R. Wisdom, R.F. Eisenlohr, and M. Stamm a description of the man who had passed upon them certain checks on the night of November 30, 1895, being the cheeks admitted in evidence in this case, and that, after he got a description from the parties named, he arrested the defendant, and that it was upon the description given him by said parties that he afterwards arrested defendant. The defendant was not present when the conversations occurred between said parties and the witness, Durham. It was objected that this testimony was hearsay, and calculated also to injure the rights of the defendant before the jury, and served to strengthen the State's testimony as to the identity of the defendant, as the party who passed or uttered the forged checks upon said parties. We think these objections are well taken. These parties who gave a description to Durbam were witnesses in the case, and testified. Their testimony as to the description and identity of the defendant was not attacked by showing that they had made contradictory statements in regard to this matter, and it was not permissible to corroborate them as to their description of the defendant, by the evidence of the witness, Durham, to the effect that they had given him a description of a party that led him to believe that defendant was the guilty party, and caused him to make the arrest. It is not necessary here to state how far an officer will be permitted to go in testifying in regard to his actions in making the arrest of a party suspected of crime, or to detail information be may have received that led him to make an arrest, or to perform any given act looking towards the arrest of a party or ferreting out crime. Suffice it to say that the testimony here detailed by the witness, Durham, was unauthorized upon that ground, for it was tentamount to a statement that these witnesses were correct in their identity of the accused as the party who passed the checks. The evidence as given was clearly hearsay, and inadmissible. The State was permitted to introduce in evidence two checks passed upon Wisdom, Yost, and Stamm, with the endorsement of the name of "Michael Gorman" placed thereon. This was objected to, because immaterial, irrelevant, and calculated to prejudice the defendant's rights in the premises. We think this testimony was admissible. See, Hennessy v. State, 23 Tex.Crim. App., 340; Burks v. State, 24 Tex.Crim. App., 326; Id., 24 Tex.Crim. App., 332. The State was also permitted to prove by Yost, Eisenlohr, Stamm, and Wisdom that they saw the defendant endorse the name "Michael Gorman" on the various checks introduced in evidence. They testified that this was the first time they had ever seen the defendant. The defendant relied upon an alibi. In this connection the defendant himself testified, and denied writing the name "Michael Gorman" on the check, denied being present or having any connection whatever with the passing of the instrument, and, after identifying a letter he had written to his sister some six or eight months prior to the alleged passing of these instruments, he proposed to introduce that letter in evidence before the jury for the purpose of comparing the handwriting of the party who wrote the name "Michael Gorman" on the checks. In other words, he proposed, as one of the means of disproving his presence at the time and place of the passing of the checks, to show by this letter that his genuine handwriting was not the same as that of the endorsement on the check. We are of opinion that the letter, under all of the circumstances, was sufficiently identified as the handwriting of the defendant to authorize its introduction as a means of comparison between the handwriting on the check and that contained in the letter. The court seems to have excluded this letter, because it was not authenticated by any other testimony than that of the defendant himself. This did not go to the relevancy of the testimony, but to its weight before the jury. While the court may have believed the defendant was testifying falsely in regard to writing the letter, yet the jury may have thought differently; and he was entitled to whatever weight might be attached to it in comparing the handwriting of the letter with the endorsement on the check. The envelope in connection with this letter, which was produced by the defendant, bore the postmark, "Waco, May 9, 1895." The letter was addressed to the defendant's sister in Memphis, Tenn., and the postmark on the back of the envelope showed that it was received at Memphis on the night of the following day. Presumably for the purposes of this trial, the defendant had procured said envelope and letter to be sent to him from Memphis. Now, if the defendant's sister, to whom the letter was addressed, had been present, and had been placed upon the stand, which would have been permitted, she could have testified as to the receipt of the letter from her brother, and identified the same. It then would have been before the jury for their inspection and comparison in connection with the alleged indorsement by the defendant on the draft he was charged with uttering. In our opinion, equally the defendant would be permitted to show that he had written said letter to his sister before this accusation was brought against him, and that the same had been returned to him by mail, and identify the same before the jury for their comparison and inspection with the alleged endorsement on the check. The charge of the court given in this case on the subject of other checks which were introduced in evidence is objected to by appellant. Without criticising said charge, we would suggest that, upon said testimony, the learned judge frame a charge in accordance with the decisions of this court on the subject of such extraneous testimony. See, Barks v. State, 24 Tex.Crim. App., 326; Id., 24 Tex.Crim. App., 332; Hennessy v. State, 23 Tex.Crim. App., 340. Thornley v. State, 36 Tex.Crim.

Rep., 118. For the admission of Durham's testimony, and for the rejection of the letter offered in evidence by the defendant, the judgment is reversed, and the cause remanded.

Reversed and Remanded.

HURT, Presiding Judge, absent.