Richards v. State , 116 Tex. Crim. 100 ( 1930 )

There is no doubt in our minds as to the sufficiency of the indictment. It pertinently and positively alleged the forgery of the name of Clyde R. Vest on the back of a genuine check to make it appear as an endorsement thereon. Omitting the formal parts the indictment charges that appellant and A. A. Crabb did —

"* * * without lawful authority and with intent to injure and defraud, wilfully and fraudulently make a false instrument in writing, purporting to be the act of another, to-wit, the act of Clyde R. Vest, by then and there endorsing the name Clyde R. Vest, next above the name Ben C. Richards on the back of a genuine instrument in writing, then and there, already in existence, said genuine instrument in writing being to the tenor following. * * *" (Here is set out the instrument which is a cashier's check payable to O. L. Matthews for $1000.00.) It is then averred that this genuine instrument in writing came into the possession of Ben C. Richards and A. A. Crabb, and as declared on by the state, had written on the back thereof "Pay to the order of Clyde R. Vest, signed O. L. Matthews, Clyde R. Vest, Ben C. Richards," then proceeds as follows:

"* * * All of which writing and endorsements on the back of said genuine instrument in writing are genuine save and except the name Clyde R. Vest * * * and which said name Clyde R. Vest was then and there falsely, wilfully and fraudulently, and without lawful authority, written on the back of said genuine instrument in writing, by said Ben C. Richards, Jr., and said A. A. Crabb, and which said endorsement of said name Clyde R. Vest on the back thereof by the same Ben C. Richards, Jr., and the said A. A. Crabb, as aforesaid, would, if the same had been true and genuine, have transferred said genuine instrument in writing, and would have enabled the said Ben C. Richards, Jr., and the said A. A. Crabb to cash said instrument in writing and to collect the sum of One Thousand Dollars therefor."

With the necessary change in language to meet the facts the indictment in question followed almost verbatim the one in Miller v. State, 34 S.W. 267. Regarding the requirements of an indictment when it is sought to allege the forgery of an endorsement it is in compliance with the principle announced in Section 410, page 1472, Bishop's New Crim. Proc., Vol. 3 (2d Ed.); Commonwealth v. Spillman, 124 Mass. 327; McBride v. State, 93 Tex.Crim. R., 246 S.W. 394; see also Strang v. State, 38 Tex.Crim. R., 22 S.W. 680; Carter v. State,55 Tex. Crim. 43, 114 S.W. 839.

Appellant also insists that this court was in error in disposing of his bill of exception number eighteen which complains that Hilliard Brite was permitted over objection of appellant to testify in response to the cross-examination by the district attorney that witness told A. A. Crabb in a conversation he had with him in Laredo that he (witness) believed that Ben Richards was a guilty man. We do not discuss the point further than to call attention to what was developed by appellant himself from the witness Brite on direct-examination. He testified in response to appellant's own questions that when he saw Crabb in Laredo he called him by that name. Brite's testimony follows:

"He says, 'Don't call me Crabb, he says, I am going by the name of A. Camp down here.' He said, 'I am down here on a little secret work for the Odd Fellows.' I said, 'Secret work for the Odd Fellows? It is Ben Richards,' and he says, 'Why did you say Ben Richards?' and I says, 'Well, I just had an idea from what the paper said that maybe you were dodging down here for Ben Richards.' "

At this point Crabb asked Brite to go to his room and the conversation between them continued as follows:

"He (Crabb) says, 'I guess you know what it is all about,' and I says, 'No, only what I read in the paper yesterday, Mr. Crabb, it looks like they are after you and Ben Richards,' and he says, 'Yes, that is what I want you up here for. I want to tell you the story and see what you think about it,' he says."

Then follows what Crabb related to Brite in the conversation and then the witness Brite testified:

"I thought in a way he was telling the truth, but still I thought it was just like I figured, I met him, he was down there in behalf of Ben. That is what was in my mind. I read it in the newspapers the day before at Encinal."

Thus by strong inference at least appellant himself developed Brite's opinion in regard to appellant's connection with the matter under investigation. Under the circumstances what witness said in reply to the district attorney's question would not be sufficient upon which to base a reversal even if it was erroneously received, which is not conceded.

In his motion for rehearing appellant reiterates the same matters presented originally. It is not thought necessary to write further in regard to those which were discussed in the original opinion. It is still believed the questions not discussed present no error nor call for detailed consideration or discussion.

The motion for rehearing is overruled.

Overruled.