Preston v. State

• Decision Date: 11 October 1899
• Citation: 53 S.W. 127
• Parties: PRESTON v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

Page 127

53 S.W. 127

PRESTON v. STATE.¹

Court of Criminal Appeals of Texas.

October 11, 1899.

Appeal from district court, Travis county; R. E. Brooks, Judge.

John W. Preston was convicted of uttering a forged instrument, and he appeals. Affirmed.

W. M. Walton, T. W. Hankinson, Rector & Rector, and Moore & Moore, for appellant. Warren W. Moore, Dist. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

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 48 S. W. 581.

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 cannot 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. Pen. 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. Cr. R. 109, 35 S. W. 971. 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. Cr. R. 627, 40 S. W. 491; Byas v. State (Tex. Cr. App.) 51 S. W. 923. 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 (Tex. Cr. App.) 46 S. W. 933. 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. Cr. Ev. § 664; People v. Kelley, 47 Cal. 125; State v. Glass, 50 Wis. 218, 6 N. W. 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 Tex. Cr. R. 431, 24 S. W. 100, 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. Cr. R. 406, 37 S. W. 758.

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....