Fry v. State

• Decision Date: 05 January 1916
• Docket Number: (No. 3878.)
• Citation: 182 S.W. 331
• Parties: FRY v. STATE.
• Court: Texas Court of Criminal Appeals

182 S.W. 331

FRY v. STATE.

(No. 3878.)

Court of Criminal Appeals of Texas.

January 5, 1916.

Appeal from District Court, Wichita County; E. W. Nicholson, Judge.

E. W. Fry was convicted of forgery, and he appeals. Reversed.

Edgar Scurry, of Wichita Falls, Arnold & Taylor and Fred Arnold, all of Henrietta, and Ramsey, Black & Ramsey, of Austin, for appellant. P. A. Martin, Jno. C. Kay, and Leslie Humphrey, Dist. Atty., all of Wichita Falls, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was tried under an indictment charging him with forgery and passing a forged instrument. The conviction was applied to the count charging forgery. The instrument alleged to be forged by alteration is as follows:

"I. B. Padgett, County Treasurer of Young County.

                "No. 3515.      Graham, Texas, 10—21—1913
                

"Pay to J. M. Watson or order $154.00, one hundred and fifty-four & no/100 dollars.

"To the Graham National Bank, County Depository.

                  "[Signed]  I. B. Padgett, County Treasurer."
                

That appellant altered said instrument by indorsing thereon the name of the payee, J. M. Watson, thus making the check payable to bearer.

Appellant moves in this court to quash the indictment on the ground that the indictment does not show that the instrument, prior to the alteration, was an instrument possessing legal efficacy and obligation, in that there is no allegation of the facts showing the authority, if any, of I. B. Padgett to act as county treasurer, and as such, to issue this check against the funds of the county; the contention being that there should have been a specific allegation that I. B. Padgett was the duly qualified and acting county treasurer of the county, and that in the issuance of said check he acted in the performance of his duties under the law — that all the facts which would render the county legally liable for the amount of the check should have been affirmatively alleged. Appellant was not charged with forging the name of Padgett, but forging the name of J. M. Watson by indorsing his name on the check. If the check on its face purported to be a check issued by Padgett, county treasurer, on the Graham National Bank, as it did, if there were extrinsic matters not appearing on the face of the check that would render it invalid, this would render it none the less forgery for appellant to indorse the name of J. M. Watson on the check. If Watson had in fact received the check and indorsed it over to a third person, he would certainly be liable to such person, for the check on its face purported to be a valid check for the amount named. We do not care to take up and review the authorities again, as we did so quite exhaustively in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501. In the case of King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792, the authorities are also reviewed, and under the authority of those two cases the instrument in this case, on its face, being a valid instrument, would make appellant guilty of forgery if he indorsed the name of J. M. Watson thereon. It is not customary for a check to bear on its face that it is issued by virtue of article so and so of the Revised Statutes, and the person who signed it is the duly elected, acting, and qualified treasurer of a given county, and no person would look for such averments in the face of a check.

Appellant contends that it was error to admit certain other checks in evidence, which it was contended appellant had also forged, in a similar manner in which it was alleged he committed this forgery; that evidence of other crimes committed by him, if he did do so, should not have been admitted. Usually this is the rule, but the exception to the rule is as well recognized as the rule itself. In the statement of facts it is alleged that some 500 or 600 of these other checks were admitted in evidence, while in the bills of exceptions complaining of the matter it is recited that there were about 150 of these other similar checks admitted. The number is immaterial. If one was admissible then all were admissible, under the agreement we find in the record. It reads:

"It is agreed by counsel and it is admitted by the defendant that the entire bunch of warrants purporting to be issued by the county clerk of Young county and his deputies and the entire bunch of checks purporting to be issued by I. B. Padgett, county treasurer of Young county and drawn on the Graham National Bank, are each and all the genuine warrants, so issued by the clerk, and that the checks are the genuine checks of I. B. Padgett, drawn by him or by his authority, and that the indorsements appearing on the back of said checks, as E. W. Fry, are the genuine indorsements and signatures of the defendant, E. W. Fry."

Thus it is seen that after this admission was made, about the only issue left for the jury to decide was: Was the indorsement of J. M. Watson forged, and, if so, did appellant forge that name? Appellant introduced evidence tending to show that if the name was forged, he did not forge it. At his instance J. P. McKinley testified:

"I have seen some of Judge Fry's [appellant's] handwriting. From having seen his signature and having seen his handwriting, I think I would know his handwriting if I were to see it. I could not swear that the `J. M. Watson' up there is in Judge Fry's handwriting. From my observation and experience with Judge Fry's handwriting, I do not see any similarity. I do not see anything that would impress me that he wrote that name."

He had other witnesses testify in substance the same thing. On the other hand, J. S. Oglesby testified for the state he was an expert accountant; that he had made a study of handwriting for 19 years. He goes into detail as to the way he identifies signatures, and says that in his opinion appellant wrote the indorsement "J. M. Watson" on the check. He also testified he had examined all the checks introduced in evidence, and that in his opinion "E. W. Fry wrote the indorsements upon each of the checks" introduced in evidence. Other witnesses gave testimony that would authorize the jury to believe that appellant wrote the indorsements. Thus it is seen the issue was squarely drawn as to whether or not appellant forged the name of J. M. Watson on the check, and all evidence which would legitimately tend to show that he did do so would be admissible. The evidence for the state would tend to show appellant was county judge of Young county; that an account was made out for road work for the amount of this check in the name of J. M. Watson, and it was marked "O. K." by Judge Fry as presiding judge of the commissioners' court; that it was then presented to the county clerk, who issued a warrant on the treasurer for that amount, and the treasurer gave the check payable to the order of J. M. Watson upon which this charge of forgery was presented. This warrant issued by the county clerk, and the check issued by the treasurer, is traced into the hands of appellant, and in addition to the indorsement of "J. M. Watson," it has his name indorsed thereon, which indorsement appellant admitted to be genuine. All the other checks introduced in evidence, issued to various people, are shown to have been obtained in the same way, and bear the genuine indorsement of appellant. The evidence shows where he used and cashed many of them. The testimony for the state is that the indorsements made on all the checks, the various names of the payees, are in the handwriting of appellant, but whether indorsed by him or not, it is shown he...