Criner v. State

• Decision Date: 16 February 1921
• Docket Number: (No. 6110.)
• Citation: 229 S.W. 860
• Parties: CRINER v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 860

CRINER v. STATE.

(No. 6110.)

Court of Criminal Appeals of Texas.

February 16, 1921.

State's Rehearing Granted March 9, 1921.

Further Rehearing Denied April 27, 1921.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

Mildred Criner was convicted of forgery, and she appeals. Affirmed on rehearing.

Poulter & Koenig, of Fort Worth, for appellant.

C. M. Cureton, Atty. Gen., and Walace Hawkins, and Tom L. Beauchamp, Asst. Attys. Gen., for the State.

MORROW, P. J.

The conviction is for forgery and punishment fixed at confinement in the penitentiary for a period of three years.

The instrument purports to be signed "J. H. Campbell, 1514 La. Ave." As offered in evidence, under the signature, there appears the term "a satisfied customer." This does not constitute a variance. The words "a satisfied customer" are not a part of the instrument, and it is not necessary to incorporate them. Bishop's New Crim. Procedure, § 407; Young v. State, 40 S. W. 793; Branch's Ann. Penal Code, § 1409; Hennessy v. State, 23 Tex. App. 354, 5 S. W. 215.

From the evidence it appears that a young woman entered Mrs. Brown's Millinery Store and purchased a hat from one of the clerks, executing a check for $27.50, purported to be signed by J. H. Campbell, in payment of the hat. The purchaser was unknown to the clerk and the others in the store. J. H. Campbell, who resided at 514 Louisiana avenue, the address attached to the check, testified that it was not signed by him or under his authority. Two employees of the store testified to the identity of the appellant with the purchaser of the hat; the clerk claiming that her attention was drawn particularly to the purchaser by reason of an expensive dress that she wore. This testimony is relied upon by the state for the identification. It is not claimed that the hat was found in the possession of the appellant nor that she was the owner of the dress which was worn by the purchaser at the time of the transaction. Appellant, in her own behalf, testified, denying all connection with the matter.

In cross-examination, against appropriate objection, the appellant was required to testify that she had at one time within two years been arrested and brought into court for shoplifting, had been tried and nothing had been done about it. In many jurisdictions the testimony that a witness had been indicted or convicted of another offense is not received as discrediting evidence. Wigmore on Evidence, § 983; Underhill on Criminal Evidence, § 245, p. 445; Wharton's Criminal Evidence, § 50.

In our state, where the accused testifies as a witness, the fact that he has been convicted or indicted for a felony or an offense involving moral turpitude may be proved for the purpose of impeachment or discrediting his testimony.

Broad as is our practice, it does not embrace the mere proof of arrest. If the state is not prepared at least to show that there was a prosecution legally established, it should not be permitted to prove that the accused had been arrested. Barkman v. State, 52 S. W. 71. "Mere accusations of felonies could not be used unless they had assumed the form of legal charges or complaints." Red v. State, 39 Tex. Cr. R. 422, 46 S. W. 408. Even where there has been a complaint filed, it is not always provable. Wright v. State, 63 Tex. Cr. R. 437, 140 S. W. 1105.

The appellant's denial of her identity should not in the instant case have been burdened by the hurtful testimony that she had been arrested for another offense in the absence of proof that the detention was by virtue of some lawful process. In solving the sharply drawn issue of identity, the jury should have been confined to the relevant evidence. To what extent the damaging facts improperly received is reflected in the verdict adjudging this young woman guilty and assessing against her a penalty much in excess of the minimum cannot be determined. Its character was such as would probably prejudice her case. The presumption is that it did.

The judgment of the trial court is reversed, and the cause remanded.

On State's Motion for Rehearing.

LATTIMORE, J.

The state has filed a motion for rehearing in this cause in which it is urged that in our original opinion we were misled by the answer of appellant, while a witness, into holding erroneous the question complained of in appellant's fourth bill of exceptions. An examination of said bill shows that the state propounded to appellant while on the witness stand the following question:

"Within the last two years you have been arrested how many times and charged in the county court of Tarrant county, Tex., with theft, to wit, shoplifting?"

To which her answer was:

"I was arrested one time with Bertha Smith and brought to the courthouse up here for shoplifting, but they did not do anything about it and it never came to trial."

The state contends that, theft being an offense involving moral turpitude, the fact of a legal...