Morgan v. State

The conviction is for passing a forged instrument, viz: a check for $431 drawn in favor of Roy Evans, December 28, 1916, on the National Bank of Commerce of Dallas, signed Paul Agnew.

The facts show that this check, endorsed Paul Agnew, Roy Evans and Benton Morgan, was deposited by the appellant to his own credit in the National Bank of Commerce at Dallas on January 3, 1917; that he had not previously had an account with said bank; that during the month of January he drew checks against the account, on which he had made no further deposits, which checks left to his credit about two dollars. Paul Agnew was a merchant in Dallas; had an account with the bank mentioned, and when his bank book was balanced about the first of February, 1917, he found his balance short, and going over his checks declared the one in question a forgery, and caused the arrest of appellant. He declared that he did not sign the check nor authorize its making, and the State introduced a number of checks and other documents bearing his admitted signature, and these were used for comparison of handwriting by experts and by others familiar with his signature. Appellant had a lease upon a certain tract of land, and claims to have sold his lease to Roy Evans for the sum of $350, taking the check in payment and giving to Evans $81 in money, the difference between the purchase price of the lease and the amount of the check. He had rented a dwelling house from Paul Agnew for several months prior to the time of the transaction, and had received receipts for the rent from Paul Agnew, which were signed by him and which were also introduced in evidence. He also introduced documents bearing his signature and written in his handwriting, among them the checks that he drew against his account at the bank mentioned, and these were used for comparison by experts and by others familiar with his handwriting. He claimed to have had the transaction involving the sale of the lease at a certain place in Dallas; that he had previously met Evans on two occasions and had made an appointment to make the trade, and that pursuant to the arrangement he and Evans met at a certain drug store for the purpose of closing the transaction, and that soon after this meeting it was closed in the manner stated. The evidence of the experts and others with reference to handwriting was conflicting. The signature on the questioned check closely resembled that of the purported maker, Paul Agnew. An inquiry into the financial resources and transactions of appellant was made, and there was testimony as to the value of the lease which he claimed to have sold to Evans. He was unable to locate Evans at the trial, though he claimed to have made considerable effort to do so.

The indictment charged forgery, and also charged the passing of the forged instrument. Both issues were submitted to the jury, and the finding against appellant was upon that of passing. The sufficiency of the evidence to sustain the verdict is attacked, but without making a review of it further than the above statement, we think it was sufficient to support the verdict. Hooper v. State, 30 Texas Crim. App., 412; Williams v. State,58 Tex. Crim. 82.

A number of bills of exception complaining of alleged errors upon the trial are found in the record. Most of them relate to the admission or rejection of testimony. As presented, they fail to make clear the relevancy of the various matters to which they relate, and are subject to the criticism that they are not sufficient fully to manifest the supposed error. Branch's Ann. P.C., sec. 207, p. 131, and cases cited. The legal presumption is that the court ruled correctly, and the bills of exception must negative this and show that a material error was committed. Edgar v. State, 59 Tex.Crim. Rep.; Moore v. State, 7 Texas Crim. App., 14, and other cases cited in Branch's Ann. P.C., p. 132. We have examined them, however, in connection with the statement of facts and the qualifications made by the trial judge.

One bill complains of the refusal of the court to permit proof that the prosecuting witness, Agnew, occasionally gambled for money. The judge in qualifying the bill says that no effort was made to show that the check in question was the result of such a transaction.

Another bill complains that he was denied the privilege of requiring the prosecuting witness to point out the particulars of the dissimilarity between his signature on the various papers that were before the jury and his signature to an affidavit which he had made. Appellant had proved by him that there was such dissimilarity, and it was a proven fact that the signature of the prosecuting witness was not alike to all of the documents bearing his admitted signature.

The banker who received the check from appellant was asked by the State if he would have given the money to the appellant, and to this he gave a negative answer. This was in the nature of a conclusion and not admissible, but not so harmful as to affect appellant's rights, it being admitted that the witness placed the amount of the check to appellant's credit and paid his checks for it.

The State produced a witness by the name of Roy Hubbard Evans, who testified that the check in question was not given to him nor endorsed by him. This, we think, was proper as a circumstance bearing upon the issues in the case. The check purported to be made in favor of Roy Evans. Appellant claimed to have gotten it from Roy Evans, and it bore that endorsement.

The failure to permit the appellant to prove that no civil suit had been brought against him on account of the check is not shown to have been harmful or material error. We are unable to discern any testimony in the record which would have made it so. It is not disputed that the purported maker of the check repudiated it and caused appellant's arrest as soon as he discovered it, and it is not shown that he or the bank would have profited by a civil suit; on the contrary, in a general way, it appears that appellant was insolvent.

The offer by appellant to prove that he had had a conversation with a witness named Miller, telling Miller that he had sold the lease to Roy Evans for $350, was an offer to prove a self-serving statement, and its rejection was not error. Vernon's C.C.P., p. 636, note 86, and cases cited.

The receipt of the testimony of the witness Sawyer to the effect that the signature examined by him looked like an imitation of Agnew's signature is not, as disclosed by the bill of exceptions, shown to have been error. Looking to the statement of facts it appears that Sawyer was introduced by the defendant and by him was shown to be familiar with the signature of Agnew, and after stating that in his opinion the signature to the check was that of Mr. Agnew, he testified on cross-examination that there was a difference in some of the letters from Agnew's signature as he knew it, and said, "To tell you the truth, I wouldn't swear to that being Paul Agnew's signature. It looks like somebody was trying to imitate his signature in that respect. It looks like his signature."

The bill complaining of the admission of evidence that the witness had told appellant that he did not have a right to sublease the land which he claims to have transferred to Evans, shows no error. It was proper for the State to prove that the lease of the land which appellant claims to have transferred to Evans was of little value. It was a relevant circumstance as bearing upon appellant's good faith in taking the check, and the truth of his statement that he had sold the lease for $350. This complaint can not be sustained.

The complaint of the admission of the status of appellant's account with a grocery merchant was proper as rebutting appellant's testimony in regard to his financial resources.

The proposition that it was requisite that the indictment should state the name of the person to be defrauded is not sound. Westbrook v. State, 23 Texas Crim. App., 401; Allen v. State,44 Tex. Crim. 63; Vernon's C.C.P., art. 454, note 7, and cases cited.

Appellant in his motion for a new trial claims that he had discovered new evidence in two particulars: First, that his brother-in-law, Hamilton, was present and saw him meet Evans and discuss the matter of the purchase and sale of the lease. It appears from the affidavit that Hamilton's testimony would be to the effect that he was present with appellant at the time that he had the transaction with Evans; that he had left Dallas on the same day, and had not talked with appellant until after his conviction. Appellant testified that he had made diligent search for Evans, and was closely cross-examined as to his meeting with him and as to persons who had seen them together. If Hamilton was there, appellant's knowledge of it at the time of the trial is certain. The record negatives the idea that the evidence was newly discovered, and his failure to produce Hamilton at the trial sustains the trial court's theory that it was not probably true. Branch's Ann. P.C., p. 126, sec. 198.

The other newly discovered evidence was that of the wife of appellant, who would have testified that she had learned from appellant that he was about to make the trade, saw him while he was writing the transfer of the lease, and that thereafter had examined his pockets and found that the four $20 bills which he previously had were missing. The relevancy of this testimony was to corroborate appellant in his testimony that in closing the trade with Evans he had given Evans four $20 bills and a one dollar bill. We think the trial court's conclusion that this was not available as newly discovered evidence and was not probably true, is sustained by the record. Branch's Ann. P.C., p. 128, sec. 200, and cases cited.

Finding the evidence sufficient and no reversible error committed in the trial of the case, the judgment of the lower court is affirmed.

Affirmed.

ON REHEARING. March 20, 1918.