Leeper v. State , 27 Tex. Ct. App. 694 ( 1889 )

Hurt, Judge.

This is a conviction for attempting to pass a forged order on the First. Rational Bank of Baird, purporting to have been signed by R. B. Dobson.

Appellant presented the order to the bank for payment. Dobson had no money in the bank, or not enough to pay the-order. The cashier called in the president and- asked him if Dobson could overdraw, and the president said, in the hearing of appellant, that “Dobson has made an arrangement with the bank to borrow one thousand dollars, but has not given the required security; Dobson is going to buy yearlings with the money, and if this (the check) is for yearlings he can get the money.” He then asked defendant if the check was for yearlings, and defendant said no,” Defendant then said that Dob-son would be in town, either that day or the next day, and that he, defendant, would see him and settle the matter. Defendant did not return to the bank.

Opinion delivered May 22, 1889.

There are some strong circumstances tending to show that Dobson executed the check. On the other hand, quite a number of witnesses swore that the signature to the check was not Dobson’s.

It seems that Dobson died about this time or a day or two afterwards. If dead at the time the check was presented, there was no evidence showing that appellant was aware of it. There is not the slightest proof that Dobson did not authorize appellant or some one else to write and sign his name to the check.

Under this state of case we think the evidence fails to support the verdict. If appellant knew the check to be a forgery, he certainly would not refuse to tell a lie, that being all that was required to procure the money. The check, if forged, was in itself, a falsehood. This, the appellant knew. If guilty3 why halt or refuse to utter another falsehood if his purpose was fraudulent?

The act of appellant being diametrically opposed to guilt, we must rather infer innocence from the circumstances tending to show that Dobson signed the check; and that the witnesses who swore that the signature was not his were mistaken, or that Dobson had authorized its execution. This inference is the only one by which all the facts in the case can be reconciled and made to harmonize.

Because the evidence is insufficient to support the verdict, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.