Reed v. State , 149 Tex. Crim. 237 ( 1946 )

The offense is forgery. The punishment assessed is confinement in the state penitentiary for a period of three years.

Appellant brings forward a number of complaints by separate bills of exception. These bills cannot be considered by us because the same were not filed within the 80-day period originally granted him by the court. The record reflects that the motion for new trial was overruled on the 13th day of July, 1945, at which time he gave notice of appeal to this court. The trial court granted him 80 days in which to file his bills of exception and statement of facts. The time so granted him expired October 1, 1945. On the 2nd day of October, he applied to the court for another extension of time which the court granted, but the time in which the court could legally make the last order had expired. Therefore, the last extension order was void inasmuch as the court had lost jurisdiction to make the order.

Appellant challenges the sufficiency of the evidence to sustain his conviction. The record discloses that appellant was charged with forging a check in the sum of $35.46, drawn on the Citizens State Bank of Dalhart, Texas, payable to the order of Ted Reed, purporting to have been signed by H. T. Reed and dated 2-13-1946. This check was passed to Charles L. Bonner, an employee of the Dalhart Consumers Fuel Association, who cashed it. H. T. Reed testified that he did not make, write or sign the check; nor did he authorize anyone else to do so; that he did not know who wrote the check in question. Bonner testified that he saw the person who presented the check to him endorse his name on the back thereof. He further testified:

"Just to be honest, I don't believe he is the same man that gave me the check. I don't think he is. I sure don't. * * * I have not seen the man I am talking about from the time he passed that check to me on up until the present time. * * * To the best of my knowledge, this defendant is not the fellow who gave me that check on the evening in question."

The State then resorted to comparison of handwriting by experts who, by comparing the writing on the check in question with other instruments proved to have been written by appellant, expressed the opinion that the person who wrote the instruments used for comparison also wrote the check in question.

In the instant case, appellant denied under oath the making or the writing of the check in question. This called for the application of Article 731, C. C. P., which provides as follows:

"It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath."

It will thus be noted that under this article of the statute, a conviction cannot stand upon testimony by comparison of handwriting alone. In support of what we have said, we refer to the following cases: Turner v. State, 183 S.W.2d 981; Spicer v. State, 52 Tex.Crim. R.; Brooks v. State,57 Tex. Crim. 251; Batte v. State, 57 Tex.Crim. R.; Reeseman v. State, 59 Tex.Crim. R.; Parker v. State, 128 Tex. Crim. 160,80 S.W.2d 319.

Having reached the conclusion that the evidence is insufficient to sustain his conviction, it is therefore ordered that the judgment of the trial court be, and the same is, reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON STATE'S MOTION FOR REHEARING.