Batte v. State , 57 Tex. Crim. 125 ( 1909 )

The writer hereof wrote the original opinion affirming the judgment. On motion for rehearing the position enunciated by the court in the original opinion was strongly assailed, and after a careful review of the questions involved I have reached the conclusion that the motion for rehearing should be granted, that the court was in error in affirming the judgment, therefore, I respectfully dissent from the opinion of the majority on the motion for rehearing.

The facts are sufficiently stated in the original opinion, and all the salient facts are stated. It was a case of circumstantial evidence, there being no eyewitness to the forgery, if one was committed, and there is no positive evidence that appellant forged the check. I am of opinion, therefore, that the circumstances do not show with that degree of legal accuracy required by law that appellant has been shown to be guilty of the crime of forgery. It will be remembered, in this connection, that appellant was charged with and convicted of forgery and not of passing a forged instrument. The evidence is amply sufficient to show that appellant presented the check to the witness Tyler, cashier of the bank in Dallas, and it is also sufficient to show that he endorsed the check in the bank at the time that he passed it upon the bank. Therefore, the signature upon the back of the check written by appellant may be taken as his genuine signature. This endorsement was taken as a basis of comparison of handwriting by the witness Tyler. Tyler testified that taking appellant's handwriting, as shown by the endorsement, and comparing it with the handwriting in the body of the check, that, in his judgment, the handwriting was the same, though he stated the letters were differently constructed or made and show dissimilarity. This is all the evidence in regard to the handwriting in the body of the check, that is, there is no evidence in regard to appellant having written or signed the check except the supposed expert testimony of Tyler that the handwriting in the check was, under the circumstances stated, in his judgment, the same as that shown in the endorsement. Appellant denied under oath the execution of the instrument, and testified further that the check was not drawn in his presence but was signed out of his presence in Oklahoma, and brought and delivered to him by Meade with the statement that Koup executed the instrument, or at least the man who was with him, whom appellant thought to be Koup. This, therefore, is a denial under oath by appellant of the execution of the instrument and that he was a principal to the drawing of the check, and a denial further that he signed the name of Koup as drawer of the instrument. The statute provides that it is competent to give evidence of handwriting by comparison made by experts, etc. It was said in Jones v. State, 7 Texas Crim. App., 457, that "The fact, however, that our statute permits such evidence does not change the well established rules as to the value of such testimony. Such evidence has always been considered feeble, and in some states unsafe to act upon. Burman v. Plunkett, 2 McCord, 518, cited in Hanley v. Gandy, 28 Tex. 211. In Adams v. Field, 21 Vt. 256, it was said: ``But those having much experience in the trials of questions depending upon the genuineness of handwriting will not require to be reminded that there is nothing in the whole range of the law of evidence more unreliable, or where courts and juries are more liable to be imposed upon.' 1 Greenl. on Ev., sect. 580, note 2." In Heacock v. State, 13 Texas Crim. App., 97, the court said: "It is a well established rule that the handwriting used as a standard of comparison must be either an admitted manuscript, or be established by clear and undoubted proof. The evidence establishing it as a standard must be either direct or equivalent to direct." This case cites several authorities in support of that proposition. See also Spicer v. State, 52 Tex. Crim. 177; Code of Criminal Procedure, article 794, and collated authorities thereunder. The Spicer case, supra, is directly in point, so far as the facts and law of this case are concerned, and my brethren, on reaching the conclusion they arrived at in this case, found it necessary to overrule the Spicer case. There is not a case decided in Texas, so far as I have been able to ascertain, that lays down a different rule, and in fact if such case could be found, it would be directly in violation of the statute. Omitting Tyler's expert testimony in regard to the handwriting, the facts that are relied upon to sustain the conviction may be stated as follows: Appellant's possession of the alleged forged draft in the city of Dallas, in Texas; that the draft or check was forged in Oklahoma; that Meade gave the check to appellant signed as set out in the record; also that Koup testified he did not sign the check. There is not only no evidence that appellant was present when the check was signed, but such as was before the jury excluded the idea of his being present. All the evidence in the record in regard to this matter, outside of the mere fact of possession, came from appellant, who testified that through Meade he sold a pair of horses and received the check in question, and another check from Meade in payment of the horses; that he was not present at the time of the transaction either as to the sale of the horses or the drawing of the check. Meade was not used as a witness in the case, and in fact his whereabouts was not known at the time of the trial, and neither side sought to have him present as a witness.

The case is not as strong on the facts as was the case of Spicer v. State, supra. It may be true, as stated by my brethren, that the act of forgery is not often witnessed by others than the man who commits the forgery. This is true in all cases of circumstantial evidence, but that would be no reason to hold the facts sufficient. I therefore respectfully enter this as my dissent.