Hennessy v. State , 23 Tex. Ct. App. 340 ( 1887 )

Willson, Judge.

We perceive no abuse of the discretion of the trial judge in refusing defendant’s application for a continuance. As to' the witness Israel, requisite diligence to obtain his testimony is not shown. The indictment was returned into court March 17, 1887. Defendant was already under bond, taken before an examining court, to answer this charge should the grand jury present an indictment therefor against him. He states that as soon as he learned that an indictment had been presented against him he appeared before the court and entered into a recognizance, but we are not informed by said application of the exact date when he entered into said recognizance. At the time of entering into said recognizance the cause was set for trial on April 20, 1887, more than one month after the presentment of the indictment. It was not until April 9, 1887, that defendant had an attachment issued and forwarded to Harrison county, Texas, for said witness Israel, that being the county of said witness’s residence. It appears upon the return of said attachment that, before it reached the hands of the sheriff of that county, said witness had removed from the county and the State to Washington City, D. C. It does not appear from the application when said witness left Harrison county, or that service of an attachment might not have been had upon him if such process had been applied for and forwarded to said county promptly, nor is it made to appear that by the use of diligence the testimony by deposition of said witness could not have been obtained in time for the trial.

As to the other absent witnesses, one of them, Lewis, was present and testified on the trial, and the facts expected to be proved by the others can not be regarded as material when considered with reference to the evidence adduced on the trial. We can not perceive in what respect, even in the remotest degree, it would affect any issue in the case, or would throw any light upon the transaction, to prove by these witnesses, Senators Claiborne, Upshaw, McManus and Houston, that they actually received from the defendant the amount of postage material charged to them. This was not an issue in the case. It was not shown, or proposed or attempted to be shown, by the prosecution that the defendant had charged up in his account book against these senators any more postage material than they had actually received from him. If it had been proved that his transactions with them had been perfectly fair and honest on his part, this fact would not even tend to prove that he did not falsify his accounts with other senators. The fact that a man has not swindled, commit* ■•'d perjury, theft, or other crime in one or more instances when opportunities presented, is neither admissible nor material to disprove guilt of a crime with which he is charged and on trial.

II. A careful inspection of the original indictment sent up with the record satisfies us that the alleged forged instrument is correctly copied into the indictment, and that there is no variance between the indictment and said instrument. In writing the name “Knittel” in the indictment, in setting forth the instrument as it appeared after alteration, the pleader has dotted one prong of the letter “n” instead of placing the dot directly over the letter “i.” The letters forming the word “Knittel” are, however, plainly and distinctly written, and the mere misplacement of the dot intended for the letter “i” certainly can not be held to constitute a variance.

It is alleged in the indictment that the alleged forged instrument was approved by “H Knittel chairman of the Committee on contingent expenses of the Senate,” etc. An inspection of the instrument shows that it was signed “H Knittel Chairman, on Com Contg Exp.” We see no variance. It was a question of fact as to whether the signature of Knittel was an approval of the claim, as alleged. As to the letters 6 W. B. W.,” appearing on the face of the alleged forged instrument, the proof showed that they were placed there after the alleged alteration of said instrument, and were therefore not a part of said instrument or of its description, and were properly omitted from the indictment. (Labbaite v. The State, 6 Texas Ct. App., 257; May v. The State, 15 Texas Ct. App., 430.) There was no error in admitting the alleged forged instrument in evidence.

III. There was no error in admitting in evidence the post-office receipts, and in admitting evidence tending to show that the said receipts had been altered by the defendant. It was sufficiently proved that these papers were made by the defendant, and it was for the jury to determine from the evidence whether they had been fraudulently made or altered by him. If fraudulently made or altered by him, they offered legitimate evidence tending to prove a fraudulent intent on his part in altering, if he did alter, the instrument upon which this indictment is based. That they are not papers of contemporaneous date with the alleged forged paper, is not a valid objection to them. It was the object of the prosecution by this collateral evidence to show a system of fraudulent acts on the part of the defendant to obtain money from the State to which he was not entitled, and thus to show that in the alteration of the particular instrument he was actuated by such fraudulent intent. “When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the the number of consistent facts, the more complete the induction is. The time of the collateral inculpatory facts is immaterial provided they be close enough together to indicate that they are pait of a system.” (Whart. Crim. Ev., sec. 38. See also subsequent sections of same chapter.) Nor do we agree to the proposition urged by counsel for the defendant that these receipts are not such documents as would afford the basis of forgery. We think they are “pecuniary obligations” within the meaning of our statute upon forgery. (Dooley v. The State, 21 Texas Ct. App., 549; Morris v. The State, 17 Texas Ct. App., 660.) With reference to this testimony, the court plainly and emphatically instructed the jury that it could be considered for one purpose only, and that purpose was to throw light upon the defendant’s intent in making the alteration charged, if he did make the alteration, and that said testimony did not and would not be considered as affecting in any way the question whether he altered the instrument set out in the indictment.

IV. The testimony of the witness Carr was relevant, and properly admitted. It tended to prove that defendant had not purchased and distributed the amount of postal material charged in his accounts, and thereby tended to prove the falsity of his accounts and his fraudulent intent in the several transactions, forming a system of frauds of which the forgery charged was a part.

V. The manner of introducing evidence is very largely within the discretion of the trial judge to control and regulate, and, it not appearing to us that this discretion was abused by the learned judge who presided at the trial of this cause, we shall not revise the matters complained of in defendant’s bills of exception seven and eight.

VI. But one exception is made to the charge of the court, and this relates to paragraphs as to reasonable doubt and circumstantial evidence. We confess that we are unable to comprehend the objection, or rather the force and soundness of it. In the respects complained of, as in all others, we regard the charge as a model one, and not subject to criticism.

VII. It is not made to appear that the court erred in overruling defendant’s motion to quash and set aside the list of jurors presented him. We are not informed by the bill of exceptions relating to this matter what the facts were concerning the grounds of said motion. By signing and allowing the said bill the judge did not establish the truth of the grounds set forth in said motion, but simply certified that such a motion had been presented to him for action, and that he had overruled it. In this state of the case we must presume that the objections urged to the list of jurors were not sustained by the facts.

VIII. We have given attention to every supposed error pointed out by the defendant’s counsel, and have made a careful examination of the voluminous record. We must say that in our judgment, the defendant has had a fair and impartial trial in strict accordance with law, and that there is no error in the conviction. As to the evidence of his guilt, it is amply sufficient. It develops a series of systematic frauds committed by the defendant, deliberately and ingeniously, for the purpose of obtaining from the State money to which he was not entitled. Ho room for doubt as to the commission of the forgery of which he stands convicted is left by the evidence. It conclusively establishes the act, and the fraudulent intent which accompanied and impelled it.

Opinion delivered May 18, 1887.

The judgment is affirmed.

Affirmed.