Chester v. State , 23 Tex. Ct. App. 577 ( 1887 )

White, Presiding Judge.

Appellant stands convicted of forgery, upon an indictment containing two counts, viz: one for forgery, and one for attempting to utter or pass as true, an instrument in writing, knowing the same to be false and forged. Appellant moved to quash the indictment, amongst other grounds, because the same is bad for duplicity, and because it is repugnant.

An indictment for forgery which, in separate counts, charges forgery and the utterance of a forged instrument, knowing it to be forged, is not vulnerable to a motion to quash upon the ground that it is duplicitous and charges two offenses, nor is it obnoxious to the objection that two distinct and separate offenses are charged in the same indictment. (Boles v. The State, 13 Texas Ct. App., 650; Foute v. The State, 15 Lea (Tenn.), 712). It is not only permissible, but is commendable, to insert in an indictment as many counts as will be necessary to provide for every possible contingency in the evidence. (Shubert v. The State, 20 Texas Ct. App., 320, citing Code Crim. Proc., art. 423; Gonzales v. The State, 12 Texas Ct. App., 650.)

It is unnecessary to discuss the effect of the apparent variance and repugnancy between the dates of the instrument as set out in the two counts. This matter, if of any serious moment whatever, was done away with entirely and eliminated from the case by the action of the district attorney, who, after the introduction of the testimony was closed, entered a nolle prosequi, and dismissed the second count, leaving the first count alone as the charge against defendant. And upon this count alone the jury were expressly restricted in their findings by the charge of the court subsequently given. The verdict and judgment are valid, sufficient, and in accordance with the charge of the court, and the first count upon which alone a conviction was sought and claimed. There is no error made to appear in any matter complained of growing out of the indictment.

During the progress of the trial the prosecution was allowed to prove, over objection of defendant, by one Church, the contents of a telegram sent by witness, at the instance and request of defendant to the First national Bank, Leavenworth, Kansas, with regard to the alleged forged draft, signed “ Bloomberg & Raphael;” also by said witness the contents of two dispatches sent by defendant, one to Tom H. Fetters, Leavenworth, Kansas; and one to Mr. Taylor, at Austin; and in connection with said evidence the State was permitted, over objection by defendant, to read in evidence a telegram purporting to be a reply to the one sent, signed “Bloomberg & Raphael.” The State was also allowed to prove by one Scott the contents of a telegram sent by witness, at the instance and request of defendant, to Gr. M. Salinger & Bro., Leavenworth, Kansas, and in connection with this evidence to read a dispatch purporting to be a reply thereto from Gl. M. Salinger.' This testimony was objected to because verbal statements as to the contents of the telegrams sent are not admissible until the failure to produce the better evidence is satisfactorily accounted for; and that, as to the telegrams received in reply, they were incompetent and inadmissible for any purpose, being the veriest hearsay, and not pretending to be under oath, and in no manner identified, or shown to be the act or acts of the parties purporting to send them.

The objections to both characters of evidence were, in our opinion, well taken. As to the telegrams sent by or at the instance of a defendant, Mr. Wharton says: “Duly proved, they may be treated as self-disserving admissions which, so far as concerns the party from whom they emanate, are subject to the usual incidents of such admissions” (citing 7 Allen, Mass., 548); but he emphatically says: “In order, however, to charge a party with a telegram, the original draft in the handwriting of the party, or his agent, must be produced. But a sender may be regarded as the employer of the telegraph company in such a sense as to make the message sent and delivered by the company primary evidence.” (Whart. Crim Ev„ 8 ed., sec. 645.)

Opinion delivered June 11, 1887.

As to the pretended replies by telegram, we know of no rule of law by which they could, in any manner, become evidence against a defendant on trial in a criminal case, who is guaranteed the right by the Constitution to be confronted with the witnesses against him, and when there is not the slightest evidence that the dispatch is the act of the party purporting to send it and when the statement it contains is most conclusive and damaging to the party against whom it is used; and that, too, a statement made by a party not under oath. It is, indeed, the veriest hearsay, which even the direst necessities of justice will not excuse or tolerate. It was patent error.

Objections to the testimony of the witness Smith as an expert to prove hand writing, as shown by the draft, and with regard to the envelope and letter of Tom H. Fetters, are not well taken. The witness qualified himself fully as an expert. It was error, ho wever, to permit the Fetters letter and envelope to go into the hands of the jury, to be compared by them with and prove the hand writing upon said draft. (Code Crim. Proc., art. 745; Haun v. The State, 13 Texas Ct. App., 384; Walker v. The State, 14 Id., 609.) All of these documents, the draft alleged to have been forged, the envelope, the letter and the business card, came from the defendant himself, and were handed by him to the witness Church, all enclosed in the envelope together, and as. such were res gestee of the attempt to pass, but only circumstances to show the forgery of, the draft.

Other supposed errors assigned are not discussed, because not deemed of a reversible character. For error in the matters pointed out above, the judgment is reversed and the cause remanded.

Reversed and remanded.