Strang v. State

Appellant was convicted of passing a forged instrument, and his punishment assessed at two years in the penitentiary, from which he appeals.

The appellant complains, that the court erred in not sustaining his motion to quash the indictment, on the ground that the indictment in one portion described the instrument as "forged," and in another portion of said indictment charged that appellant knew the endorsement was forged. The court did not err. The name of the payee endorsed on the back of the check, payable to order, would, had it been genuine, have made the check negotiable (Burks' case, 24 Texas Criminal Appeals, 328), and, being forged, was such an alteration of the instrument as made it forgery under article 432, Penal Code. Bish. Crim. Law, 572, 573. Hence knowledge of this fact in passing the instrument was sufficient to constitute the offense of "knowingly passing as true a forged instrument." Penal Code, art. 443.

Neither did the court err in overruling the objection to the admissibility of the forged instrument, upon the ground that the same was passed in Nolan County, by one Thomas, the clerk of appellant, and not by appellant, who was in Fisher County, because the clerk was the innocent agent of appellant, and passed the check under instructions of appellant.

Appellant complains, that the court erred in the fifth and sixth paragraphs of his charge, to the effect that if appellant, acting through his agent, S.W. Thomas, did knowingly and fraudulently pass as true to R.L. McCauley the forged instrument, they should find him guilty; because said charge assumes the fact to be, that S.W. Thomas was the agent of appellant, and it was therefore a charge upon the weight of the evidence. There was no issue on the question of the agency. It was not only shown by the evidence of Thomas, but appellant stated himself, that the said Thomas was his clerk, and cashed the check under his orders; and that the name of the payee, A. Rawlins, was endorsed thereon by appellant before delivering it to Thomas. There was no error in the charge.

The appellant complains, that the court erred in permitting the witness to prove that appellant had embezzled other funds, and had confessed the fact, when charged with it, in the same conversation in which he admitted he had signed Rawlins' name, and obtained the money on the Rawlins check. The court says no objection was made to the testimony on the ground that it was a separate offense. We do not see why this testimony was not admissible as throwing light on the intent of appellant. The sole defense in this case was good faith. Appellant admitted, that without authority of Rawlins, or specific directions from Millsap, he had endorsed Rawlins' name on the check, and drawn the money, but with no fraudulent intent. He claimed that he had signed Rawlins' name in good faith, believing he had the same right to act as Millsap himself, and under Millsap's express direction "to transact his business exactly as he would have done." When confronted by the registered letter of Millsap, found opened in his private drawer, he declared he intended to deliver the letter to Millsap, but thought it was lost. To show that appellant was secreting the letter, the State proved that appellant denied collecting some money for Millsap, when in fact he had done so, and was concealing it from him, and only admitted the fact when detected in possession of the registered letter. It is certainly reasonable to suppose, that one who acts in good faith for another will not deny and conceal from him matter that he has a right to know. The subject matter in both instances was the same — the agency of appellant. Francis v. The State, 7 Texas Cr. App., 514; Pitner v. The State, 23 Texas Cr. App., 366.

But the appellant claims, the court erred in not limiting in his charge the effect of this evidence. There was no exception taken to the charge on this account, nor instructions asked, nor was there any such ground set up in the motion for a new trial, nor on any assignment of error. It is first suggested in brief of counsel, and it is urged, that the failure of the court to limit the effect of the evidence was fundamental error, for which this court will reverse. There have been many cases to the effect that the failure of the court may be so regarded; but it is not every failure that is to be so regarded. It will be found that the principle running through the cases is, that where extraneous facts are introduced, because part of res gestæ, as in Reno's case, 25 Texas Criminal Appeals, 110; Holmes' case, 20 Texas Criminal Appeals, 509; or as a matter of inducement, as in Washington's case, 23 Texas Criminal Appeals, 336; or where the same character of crime is shown, as in Taylor's case, 22 Texas Criminal Appeals, 546, which might, if not explained or limited, exercise a wrong, undue, or improper influence upon the jury in their consideration of the main issue, it will be reversible error. Hence, the question always is, did the failure of the court to limit the evidence injure defendant? Davidson's case, 22 Texas Cr. App., 383; Brown's case, 24 Texas Cr. App., 181; Leeper's case, 29 Texas Cr. App., 69; Blackwell's case, 29 Texas Cr. App., 195; McKinney's case, 8 Texas Cr. App., 639; Blumann's case, 21 S.W. Rep., 1027; Taylor's case, 22 Texas Cr. App., 545. If there is nothing to show that the jury were improperly misled, this court will not, in the absence of requested instructions, or where there is a failure to except, reverse the case. Leeper's case, 29 Texas Cr. App., 69.

Applying the law to the facts, we may concede that appellant was the agent of Millsap, and even to the extraordinary extent claimed by him of attending to Millsap's business as if it were his own, and opening his business letters; but such authority, however great, can hardly be honestly invoked in the case at bar. Appellant was a merchant, and attended to Millsap's business, and was postmaster at Fisher. He visited Millsap in Stonewall County, bearing a letter from A. Rawlins, stating that his contract was completed, and that he owed him $85 for a tombstone. Millsap, having money at Trammell Co.'s bank at Sweetwater, wrote a check for the amount. He then wrote a letter to A. Rawlins, enclosed the check in an envelope, and sealed, directed, and stamped it, and delivered it to appellant, to be sent by mail. Appellant received the letter. He knew that Millsap had money at Trammell's bank, but made no effort to borrow any, but when he got home he opened the letter, endorsed A. Rawlins' name on the check, and drew the money. If the letter had contained bank bills instead of a check, it would be difficult to understand how a general agency would have authorized the opening of the letter, and the appropriation of the funds, in defiance of the direct instructions of Millsap; but certainly no such agency could be introduced as a defense for signing a name he had no pretense of authority for signing, and thereby obtaining the money. We think the evidence clearly shows that appellant not only knew he had no authority, but on the contrary, sought to conceal his act from Millsap. There was no possibility of his being convicted of embezzlement. The only issue here was forgery. Millsap sent the money to Rawlins. Appellant intercepted the money by signing Rawlins' name. The punishment assessed was the lowest, and we can not see any possible injury in the failure to limit the effect of the evidence.

The judgment is affirmed.

Affirmed.

HURT, P. J., and DAVIDSON, J., agree to the conclusion, but do not think the evidence admissible; but under the circumstances of this case this testimony did not injure the defendant, the proof showing beyond question that appellant had no right, from the course of dealing between the parties, nor from any other source, to such use of the draft in question, nor any reasonable ground to believe that he had a right to do so.