Jacobs v. State

Appellant was convicted under an indictment charging forgery and uttering a forged instrument. The charge of the court submitted both counts, and the verdict of the jury was as follows: "We, the jury, find defendant guilty, and assess his punishment in the State penitentiary for two years. [Signed] Geo. C. Davis, Foreman." The judgment recites the court adjudged defend-and "guilty of the offense as found by the jury." The final sentence of the court states: "It is the order of the court that defendant, Sol Jacobs, who has been adjudged guilty of the offense as found by the jury, whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for two years," etc. Thus, it appears from the verdict, judgment, and sentence there is nothing to indicate of what appellant was found guilty. Article 549a, Penal Code, provides: "A conviction for any of the offenses mentioned in articles 530, 542, and 544 of this Code shall be a bar to any other prosecution under said articles based upon the same transaction or same forged instrument of writing, provided that one or more of said several offenses may be charged by separate counts in the same bill of indictment and prosecuted together to final judgment, without election by the State as to which it relies upon for conviction; and, provided further, the judgment of conviction shall specify which offense or under which count defendant is found guilty, and shall assess but one penalty, not exceeding the greatest punishment fixed by law to the highest grade of offense of which defendant is convicted." From this article it appears that the letter and spirit of this statute have been violated by the trial court. It is not necessary, as contended by appellant, that the jury should say in their verdict of what offense appellant is convicted, but the statute makes it imperative upon the trial court, in entering the judgment of conviction, to specify of which offense or under which count defendant is found guilty. In this connection, appellant refers to Carr v. State, 36 Texas Criminal Reports, 3. We there held that, where an indictment for forgery contains two counts, one for forgery and the other for uttering or passing the forged instrument, an election between the counts can not be required, and where both counts are submitted, and the evidence supports both, a general verdict can be entered upon either one of the counts. Appellant further insists that this contravenes the above quoted statute. We do not agree with this, but think the decision referred to is in line and in harmony with the statute, since the statute does not inhibit the jury from returning a general verdict where there is a count both for forgery and uttering a forged instrument, but the statute makes it the duty of the court, in entering judgment and sentence, to recite of which offense defendant is adjudged guilty. Nor do we think this statute invades the province of the jury, where they return a general verdict of so many years in the penitentiary. The penalty not exceeding the greatest punishment fixed by law to the highest grade of offense of which defendant is convicted, it is a mere legal form for the court to designate to which offense in the indictment the punishment must be assessed. Carr v. State, 6 Texas Criminal Appeals, 417, which appellant in his brief relies upon, was decided under the old statute, prior to the passage of the present one, and has no application to the question at issue. The question here involved was decided adversely to appellant's contention in Lovejoy v. State, 40 Texas Criminal Reports, 89. There we held that the acts of the court in the premises were upheld by the common-law precedents. Our attention at that time was not called to the statute quoted above, but certainly the statute amply authorizes such action on the part of the court.

The judgment of the court does not declare defendant guilty of any particular offense. This should have been done, and the sentence should have followed the judgment.

Motion to quash the indictment was made on the ground that it alleges an impossible date. The indictment itself does not bear out this contention. The date is there alleged as follows: "The 19th day of October, in the year of our Lord one thousand eight hundred and ninety-eight." The word "eight" is written over the word "two," which word has been obliterated and blotted out. We do not think the court erred in overruling this motion. Appellant's eighth assignment is that the court erred in permitting E.C. Smith, over his objections, to testify that he went to the South Texas National Bank, where he negotiated the alleged forged note, and that he told said bank that the name of L.M. Rich upon said note was a forgery. This conversation was clearly violative of the rules of evidence, in that it was a conversation res inter alios acta, out of the presence of appellant, without his knowledge, and the declaration of the prosecuting witness that in no event or continegncy could bind appellant. It is a well settled rule of law that conversations between third parties in no way connected with defendant, and of which conversations appellant does not know, can not, in the nature of things, bind appellant. Nor could the prosecuting witness, Smith, corroborate his testimony by the statement he made to the South Texas National Bank. Gonzales v. State, 16 Texas Crim. App., 154; Byrd v. State, 26 Texas Crim. App., 374; Wright v. State, 37 Tex.Crim. Rep.; Barry v. State, 37 Tex.Crim. Rep.; Roberts v. State (Texas Crim. App.), 47 S.W. Rep., 358.

Bills numbers 37 and 38 urge that the court erred in permitting various witnesses to testify to the general reputation of the prosecuting witness, E.C. Smith, for truth and veracity in the community where he lived. Smith testified that appellant brought a note to him, written out and signed by defendant, with defendant's name as well as the name of L.M. Rich indorsed upon the back thereof. The forgery, and the uttering of the forged instrument, is based upon the alleged fact that the name of L.M. Rich was placed upon said note without authority of said Rich by appellant, and hence was forgery. Appellant testified that, when he delivered the note to Smith, it did not have the name of L.M. Rich upon the back thereof. Under this state of the case, the court permitted the State to introduce witnesses who testified to the general reputation of the prosecuting witness, Smith, for truth and veracity. It is not permissible for the State to introduce witnesses to bolster up the credibility of a witness, where there is a mere conflict between the testimony of the State and defendant's witnesses. In Harris v. State, 45 Southwestern Reporter, 714, we said: "We have held that, where it is shown a witness has made conflicting statements about a material fact, the party introducing can support him by proof that his general reputation for truth and veracity is good. We have also held that where there is a conflict in the testimony, and the witness is a stranger, his testimony may be supported in the same way. However, we know of no rule or case holding that, where there is a mere conflict in the testimony of witnesses, a witness can be supported by proof that his general reputation is good." The court erred in permitting the introduction of the testimony, as a bare inspection of this bill shows there was a conflict in the testimony, and the State had no right to introduce the witnesses. McGrath v. State, 35 Tex.Crim. Rep.; Rushing v. State, 25 Texas Crim. App., 609. It follows, therefore, that appellant's effort to bolster up the testimony of certain witnesses in the same manner as attempted by the State was not permissible, and the court did not err in refusing to permit it.

Bill number 42 complains that the court permitted the introduction of various witnesses, who testified that the general reputation of appellant for truth and veracity in the community in which he lived was bad; appellant's objection being that the witnesses did not qualify themselves to testify to such reputation. It is sufficient to say that the trial court should be careful to see that proper predicate is laid before permitting witnesses to testify to general reputation. The rule on this matter is plain and simple.

Bill number 45 complains that the court permitted F.C. Connor to testify for the State, over appellant's objection, as to what the Southern Shoe Company owed appellant, because said evidence was not the best evidence; the witness having stated he derived his information from the books of the company. Appellant insisted that the books were the proper and best evidence of what they might contain, there being no evidence of their destruction, or that they could not be produced. It is a general rule, recognized by the courts, that the best evidence is required that can be obtained. The rule, however, excludes that evidence which itself indicates the existence of original information. Inferior proof can not be resorted to until it is shown to be impossible to procure the best evidence. 1 Greenl. on Ev., 126; Wyers v. State, 13 Texas Crim. App., 57; Hunter v. State, Id., 16. The bill showing that the witness Connor was testifying from his remembrance of the books of the Southern Shoe Company, there should have been some predicate laid for the introduction of his testimony in lieu of the books, i.e., it should have been shown that the books were lost or destroyed; otherwise, the books, being the best evidence, should have been introduced as evidence.

Appellant also insists that the court should have charged the jury that the prosecuting witness, E.C. Smith, was an accessory under the law governing the evidence. The evidence shows nothing to indicate that the witness Smith was an accessory, and the court did not err in refusing to so charge.

This record is rather a remarkable one, and contains 50 bills of exception and 300 typewritten pages. It is a simple case of forgery. There is certainly no excuse for such tedious prolixity in getting up the record. We have carefully reviewed every assignment of error, and note those we think necessary in passing upon this case. For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.