Preston v. State , 41 Tex. Crim. 300 ( 1899 )

Appellant was convicted of passing as true a forged instrument in writing, and his punishment assessed at eight years confinement in the penitentiary, and he appeals.

This is the second appeal in this case. For the opinion reversing the case at a former term of this court, see 40 Texas Criminal Reports, 72.

Appellant's first assignment of errors involves the action of the court in striking out his special plea of former jeopardy and acquittal in the District Court of Bexar County, the plea in question setting out in proper form the trial and acquittal of the defendant on an indictment for forging the deed which he is charged to have uttered in the present indictment, and it is said that they are one and the same transaction, and that the same evidence necessary to a conviction in this case was adduced, and was requisite to be adduced, on the former trial. It can not be urged that the forging and uttering the same forged instrument are not made by our statute two distinct offenses, and, prior to the Act of 1895, a conviction for one offense did not bar a prosecution for the other. Penal Code, art. 549a. But it will be noted that said article makes a conviction, and not an acquittal, a bar. Green v. State, 36 Tex.Crim. Rep.. Where the indictment on which a defendant is being tried and the plea in bar show distinct offenses, as in this case, not susceptible of being proved as the same identical case, and in the former case an acquittal is shown, the court may strike out the plea of former jeopardy. Wright v. State, 37 Tex.Crim. Rep.; Byas v. State, ante, p. 51. As was said by the Supreme Court in Wilson v. State,45 Tex. 77: "The rule to be adduced from the authorities is that, where the offenses charged in different indictments are so diverse as not to admit of proof that they are the same, the court may decide the issue without submitting it to the jury." While it is true the evidence of the forgery must be adduced in the trial of this case for uttering the alleged forged instrument, this is only adduced for the purpose of showing scienter on the part of the appellant, and for the purpose of establishing the basis for the prosecution for uttering said instrument. If the case stopped there, appellant would be entitled to an acquittal; and before he could be convicted the State would be required to go further, and show the additional fact of passing said instrument. In the trial for the forgery, proof of the uttering of the forged instrument may not have been necessary. If necessary, it would not be for the purpose of procuring a conviction for the forgery, but merely to show guilty knowledge on the part of the alleged forger. There was no error in the action of the court in striking out the plea of former acquittal for the offense of forgery. It is admitted by counsel for appellant that the rule above stated ordinarily holds good, but that, under the facts of this particular case, the rule does not apply. It is insisted, as we understand it, that inasmuch as the State insisted in the former prosecution that appellant forged the deed which he is alleged in this case to have uttered, and because of his acquittal in the former case, that the plea in bar ought to be held good, because it has been decided by a jury of his peers that appellant did not forge the alleged deed. If we concede this contention to be sound, it would follow that in every case of forgery where the jury may have failed to discharge their duty, or there was some lack of testimony to convict a defendant, he could not be subsequently prosecuted for uttering said forged instrument.

Appellant contends that the court erred in permitting the State, over the objections of the defendant, to place H.L. Spain on the stand, and to reproduce the testimony of defendant when on the stand as a witness in his own behalf on the former trial of this case, in May, 1897, because (1) the action of the State was tantamount to putting the defendant on the stand as a witness against himself, and forcing him to testify against himself; (2) it appeared that the defendant, when testifying, was at the time under arrest, and not warned; (3) it put the defendant in the attitude of an impeached witness by the testimony of other witnesses, upon facts material and immaterial, and said testimony was not limited by the court in its charge, and the jury were nowhere informed that such testimony could be received or considered for such purpose, and that such reproduced evidence could not be received as evidence of guilt. It is not necessary here to discuss the question whether or not, when a defendant takes the stand on his own behalf at a former trial of the same case, his testimony then given can be used against him on a subsequent trial, as that matter was gone into thoroughly in Collins v. State, 39 Texas Criminal Reports, 441. We hold here, as we did in that case, that, where a defendant takes the stand on his own behalf, we will presume that it was voluntarily done on his part, and after full consultation with his counsel, and with the knowledge of his rights in the premises. He is then under the protecting ægis of the court, and the statute as to warning in such cases does not apply, and testimony so given can be used against him at any subsequent trial of the same case. And see, also, Whart. Crim. Ev., sec. 664; People v. Kelley, 47 Cal. 125; State v. Glass,50 Wis. 218, 6 N.W. Rep., 500.

There was no error in the action of the court refusing to permit the defendant to show by the witness Burke, on cross-examination, that he, (Burke) had made out and sworn to a false account against the State as a witness on the trial of the defendant in Atascosa County. Carroll v. State, 32 Texas Criminal Reports, 431, does not support appellant. The witness can only be impeached by showing that he has been legally charged with some offense, such as a felony or misdemeanor imputing moral turpitude. Brittain v. State, 36 Tex.Crim. Rep..

Appellant insists that the court should have directly instructed the jury that Maddox, the officer before whom the acknowledgments to the deeds were taken, was an accomplice, as well as Burke and Nicholson. While the court did not instruct the jury that Maddox was an accomplice, the court did instruct the jury on the law of accomplice testimony with reference to Maddox, and told them distinctly, if they found he was an accomplice, that they could not corroborate Burke and Nicholson with his testimony, and that they could not convict defendant unless they found that there was other testimony in the case corroborative of the accomplices' testimony and tending to connect appellant with the commission of the offense. The record clearly shows a difference in the attitude of the witnesses Burke and Nicholson and the witness Maddox on the subject of accomplices' testimony. The two former were confessed accomplices. As to the latter, while there is testimony strongly suggesting his implication in the case as an accomplice, yet he strenuously denied this, and in his evidence made a very plausible explanation as to his connection with the case, and how he came to take the certificate of acknowledgment as he did, — that is, he explained how he came to certify that Nicholson, who executed and acknowledged the deed as Felps, was personally known to him; and, in our opinion, under the evidence, it was proper for the court to submit the question as to Maddox being an accomplice to the jury. On this point counsel refer us to Barrara v. State, 42 Tex. 260 [42 Tex. 260], and Williams v. State, Id., 392. We have examined the cases, and, in our view, they do not bear out the contention of appellant. Indeed, the first named case supports the action taken by the learned judge who tried this case. There is no evidence here that the former case against the witness Maddox was dismissed on account of any agreement between him and the State that the dismissal should be in consideration of his testifying in this case. We quote from Barrara's case, supra: "It will hardly be contended that where the witness denies, either tacitly or expressly, the fact of his complicity, but there is other evidence establishing, or tending to establish it, that the defendant is not entitled to the benefit of an instruction on the hypothesis that the jury may regard the witness as an accomplice. We have substantially ruled in the case of Garrett v. State (decided at the recent session at Tyler),41 Tex. 530, that, where there is evidence tending to criminate the witness, the question may be submitted to the jury." In Zollicoffer v. State, 16 Texas Criminal Appeals, 312, it was held that the better practice is for the court to submit the question of whether or not a witness is an accomplice under proper instruction, defining what an accomplice is. Martin v. State,38 Tex. Crim. 462.

Appellant in his motion for new trial, strenuously urges that the conviction can not stand, on the ground that Burke, Nicholson, and Maddox are all accomplices, and there is absolutely no testimony tending to corroborate them and to connect appellant with the offense charged. If it be true that Maddox is an accomplice, — and there is no controversy as to this, — then, if it be conceded that the jury may have found otherwise, still it would be the duty of this court to reverse the case, unless there is testimony, outside of these three witnesses, corroborating them, and tending to connect appellant with the commission of the offense; for we fully recognize the doctrine that the verdict of the jury on this question is not binding, in the face of overwhelming testimony showing him to be an accomplice. As stated before, Maddox did not confess himself an accomplice, nor is there any evidence in the record of an agreement between him and the State that the case against him was dismissed in consideration that he should testify against appellant. It is conceded that there is strong testimony in the case indicating or tending to show him to be an accomplice, but he denied this, and explained the method of his taking the acknowledgment of Nicholson, who signed the name of Felps to the deed, in a manner that is at least plausible, and we can not say that the jury were bound to disbelieve him. They may have found that he had no criminal connection with the execution of the deed, but acted merely in a ministerial capacity in taking the acknowledgment. If they were authorized to do this, then it may be assumed, in support of the verdict, that they did this; and, if the jury did not regard him as an accomplice, then, in our opinion, his testimony corroborates the evidence of Nicholson and Burke, the confessed accomplices, and tends to connect appellant with the commission of the offense. But if it be conceded that Maddox was an accomplice, then it occurs to us there is testimony outside of these three witnesses, corroborating them, and tending to connect appellant with the commission of said offense. Appellant cites us to a number of circumstances from the record that would suggest a want of corroboration by extraneous testimony. The question, however, is, are there facts and circumstances in the record, fairly considered, which tend to connect appellant with the commission of the offense? We cull the following from the evidence, which, in our opinion, tends in that direction: According to appellant's own testimony, reproduced from a former trial, he was present at the time the forged instrument was executed and acknowledged. The accomplices say that he gave direction as to the taking of the acknowledgment, and insisted that it should be taken by an officer who knew the assumed vendor Felps. Preston was a lawyer, and, from his vocation, familiar with the rules regulating the conveyance of real estate. Burke and Nicholson, alias Felps, were not lawyers, — the one was a horse trader and the other a painter, — and not likely to know how an acknowledgment should be taken. Appellant alone, it seems, knew the necessity of having the certificate of acknowledgment show the important fact of a personal acquaintance by the officer with the alleged vendor, Nicholson, alias Felps. The testimony of outside witnesses establishes the fact that defendant lived in Atascosa County, and that neither Burke nor Nicholson lived there. Burke lived in San Antonio, and was known to appellant; and Nicholson, alias Felps, lived there also, though in the deed he assumed to be from Grimes County. The land was situated in Atascosa County, and Preston was desirous of purchasing the same. The record shows that he had requested Burke to look up Felps, the owner of the land in question, in order that he might purchase it from him. Burke is not shown to have had any such desire. Indeed, it is strongly suggested by the testimony that he was impecunious, and exceedingly unlikely to have $500, the consideration expressed in the deed from Felps to him, with which to buy the land. Burke states (and the record supports him in this) that he made nothing by the purchase and sale. The consideration expressed in the deed to him was $500, while the consideration expressed in the deed from him to appellant was $600. The evidence shows, however, from appellant's own reproduced testimony that he did not claim to have paid $600, but something less than this. The only evidence in regard to value is to the effect that the land was only worth $2.50 an acre, or $400 for the tract. It is a singular fact (if this was a bona fide transaction) that Preston, who knew the land, was paying more than it was worth. And, more than this, from appellant's standpoint, the vendor, Felps, was an absolute stranger to him, yet he made no investigation respecting him to ascertain his identity as the owner of the land. The patent was to Felps as a locative interest, and he should have been at least 24 years old in 1876, when the patent was issued, yet the man Nicholson, who personated Felps, and whom appellant recognized at a former trial of the case as the Felps who conveyed the land, in 1876 was only 14 years old, and in 1893, when the land was conveyed, was only 31 years old. Neither his appearance as to age, nor the surrounding circumstances attending the transaction, appear to have suggested to appellant any inquiry as to his identity. The proof shows that appellant kept the deeds from the record for a year, thus trusting a mere stranger, who during all that time was in a position to defraud him by another sale of the premises. And it is significant, too, that the conveyance was not made directly from Felps to appellant, but two deeds were required, when one would have answered the purpose of an honest transfer. The assumed accomplices, in our opinion, show that appellant was present at the execution of the deeds, and that the deed from Nicholson, alias Felps, to Burke, and the deed from Burke to him, were executed at the same time, and were a part of the same transaction. The extraneous testimony shows that the trade was made for appellant's benefit; that appellant supervised and directed the same, being the master spirit on that occasion; that Burke was a mere conduit; and that the whole trade was consummated for appellant's benefit. This is the effect of the outside testimony, and it corroborates the testimony of Burke, Nicholson, and Maddox (if it be deemed that the latter is an accomplice); and these facts tend to connect appellant with the offense charged, — that is, they tend to show that he was present at the time and knew that the deed from Felps to Burke was a forgery, and that when he filed the deed for record with the clerk of Atascosa County, he had this guilty knowledge.

The court's charge sufficiently informed the jury as to the use they could make of the deed from Burke to Preston, and there was no error in the action of the court in failing to give the requested charge on this subject.

Appellant complains that the court refused to give his special requested charge number 8, instructing the jury that they could consider certain testimony as a test in determining the matter of the forgery of the deed in question. We find no bill of exceptions to the refusal of the court to give the requested charge, and no complaint as to such refusal in the motion for new trial. However, the court was not required to single out this testimony, and give a special charge upon it.

Appellant also insists that a new trial should have been granted him on newly discovered evidence. As to some of the witnesses, it appears, by the least diligence, appellant might have discovered their testimony. This is especially true as to the witness T.H. Franklin, who was of counsel on the trial of the forgery. Furthermore, the newly discovered testimony appears to be, some of it cumulative, and some of it of an impeaching character. We do not believe the court erred in overruling said motion. The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.