Stanford v. State , 103 Tex. Crim. 182 ( 1925 )

Appellant challenges the statement in our original opinion to the effect that in view of his testimony it was proper to admit evidence of other offenses as throwing light on the intent of appellant at the time he gave the check which is the basis of this prosecution. The proposition of law is conceded to be correct, but it is urged that proof of appellant giving other checks was inadmissible because such proof did not show the commission of other offenses. Appellant testified that the check in question was given on the wrong bank by mistake. This was his defense and if true would defeat the state's case. Any competent evidence which tends to defeat the defense urged is admissible. This is true even though it does show or tends to show another offense. Craig v. State, 23 S.W. 1108; Bedford v. State, 170 S.W. 727. We think proof that about the time appellant gave the check upon which the prosecution is based he also gave many other checks on the same bank which were unpaid tended to defeat his claim that the particular check was drawn on the bank by mistake. This is true even though proof of giving the other checks may have fallen short of showing the commission of an offense in drawing them.

Complaint is made in the motion for rehearing that we failed to give attention to certain objections to the court's charge as being upon the weight of the evidence, and in assuming the existence of certain facts to be true which should have been left to the determination of the jury. In response to this renewed contention we have again carefully examined the charge and the exceptions. Of course, there is no way for us to know whether the charge was subject to these criticisms at the time the exceptions to it were presented, if so, it must have been amended to meet the objections mentioned. It does not now appear to be vulnerable to them.

In the charge is a paragraph reading as follows: "You are instructed that a person in the eyes of the law is presumed to have intended the legal consequences of his acts."

To just what issue in the case the learned trial judge thought the instruction quoted had application is left to conjecture. He makes no application of it. We are inclined to agree with counsel for appellant that such instruction was erroneous. However, we have not been able to agree that such error calls for a reversal. Appellant's defense was that he intended to draw the check in question upon the Guaranty State Bank and not against the one on which it was in fact drawn. This issue was fairly submitted. Appellant was further protected by defensive charges telling the jury if they entertained a reasonable doubt whether appellant intended to defraud the party to whom the check was given, or if they had a reasonable doubt whether he had funds in the First State Bank, or a reasonable doubt as to appellant having good reason to believe he would have funds in that bank to pay the check when in the ordinary course of business it was presented for payment, they should acquit him. The particular portion of the charge complained of should not have been given, but we do not think injury to appellant could have resulted from it in view of the charge as a whole. We are commanded by Art. 666, C. C. P. (1925 Revision) not to reverse judgments unless errors in the charge appear from the record calculated to injure the rights of accused.

Exception was reserved to the following instruction:

"You are further charged that you will not find the defendant guilty in this case on the evidence alone of his having given other unpaid checks, but in order to convict defendant you must find him guilty under the provisions of this charge as above set out."

This was evidently an effort on the part of the trial court to limit the purpose for which the jury might consider the evidence of accused giving other checks than the one upon which the prosecution is based. The exception complained that it was too restrictive and did not properly limit the testimony about the other checks. The exception is well taken but no special charge was requested correcting the error complained of. This being a misdemeanor case the rule is that in order to have the charge of the court reviewed not only exception must be taken to it but correct special charge requested to correct the supposed error. Basquez v. State, 56 Tex.Crim. Rep.;119 S.W. 861; Parrocini v. State, 90 Tex.Crim. Rep.,234 S.W. 671; Stevens v. State, 90 Tex.Crim. Rep., 234 S.W. 540. See also authorities collated on page 499, under Article 739, Vernon's C. C. P.

The motion for rehearing is overruled.

Overruled.