Fry v. State

• Decision Date: 16 January 1918
• Docket Number: (No. 4390.)
• Citation: 203 S.W. 1096
• Parties: FRY v. STATE.
• Court: Texas Court of Criminal Appeals

203 S.W. 1096

FRY v. STATE.

(No. 4390.)

Court of Criminal Appeals of Texas.

January 16, 1918.

On Motion for Rehearing, June 5, 1918.

Appeal from District Court, Clay County; William N. Bonner, Judge.

E. W. Fry was convicted of passing a forged instrument, and he appeals. Reversed and remanded.

Edgar Scurry, of Wichita Falls, Wantland & Parrish and Taylor, Allen & Taylor, all of Henrietta, and B. Y. Cummings, of Waco, for appellant. P. A. Martin, Leslie Humphrey, Dist. Atty., and Jno. C. Kay, all of Wichita Falls, and E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment in the first count charged forgery, and in the second passing a forged instrument. The count charging the passing was alone submitted to the jury. So the forgery count passed out, and upon which in future trials he will stand acquitted.

There are a great many bills of exceptions reserved to the introduction of testimony, and several exceptions properly pointed out errors in the court's charge. The state seems to rely upon the case of Fry v. State, 182 S. W. 331. There is a marked distinction between that and the present case. That opinion recites in quotation an agreement as follows:

"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."

This record does not contain such admission, and the issue of the genuineness of the indorsement of the checks is one of the most serious question arising on this record. The checks admitted were considerably over 100 in number. A serious question arising was that appellant did not sign his name or that of the payee upon the back of the checks. These issues were sharply contested. The state contended that the signature of appellant was genuine, and that the payee's name was forged. These questions were to be solved largely, if not exclusively, by the knowledge of the witnesses as to the handwriting of appellant. These transactions cover two or three years of time. The chceks were introduced by the state upon the theory that it was necessary to prove intent of the appellant by means of systematic passing forged instruments. System is only used where it connects with the main fact, and this to show intent or knowledge or identity. Independent of these, system is not introducible as we understand the law. It is not permissible to prove independent transactions unless by doing so they show the intent of the accused, or connect him with the main fact; that is, the case on trial. The mere fact that system was pursued is not admissible independent of the other matters. The writer has not believed, nor does he yet believe, that these checks were admissible from any viewpoint of this record, or of the record in the case of Fry v. State, 182 S. W. 331. He took occasion in that case to note the fact that he did not believe the extraneous offenses, or the details thereof, should have been admitted, but the majority of the court did not take that view of the case or the law. But here we have an entirely different case from the former one, and in all of the cases there was an issue sharply drawn and hotly contested that appellant's name was not genuine; that his name as written on these checks was not in his handwriting. The case is one of purely circumstantial evidence, and the court so charged the jury. In this case we are of opinion these checks should not have been admitted under the circumstances stated. In all of the checks, amounting to a great number, the issue was fought with reference to each check introduced as to the genuineness of appellant's name. From the fact that his name was on these instruments, the deduction was supposed to be drawn that, if he signed his name upon these checks, he forged the name of the payee in the checks, or knew, if he did not sign the name, that the indorsed name was a forgery. This necessarily involves evidence as to the genuineness vel non of appellant's name and of these various checks. So it will be seen from this statement that each check involved a separate trial as to that particular transaction, and we have the main trial turned aside from passing the instrument made payable to and indorsed by Lowe, which was the check upon which the indictment was based to all the other checks introduced. There is no question, it seems, of the fact that the check was genuine as drawn by Padgett, the alleged county treasurer. The fraud consisted in the indorsement of Lowe's name upon the back of it, and passing the check in that condition. Lowe testified that he did not sign his name, and that the county did not owe him the amount for which the check was drawn. The same may be said of the other checks, practically all of them. It is a rule that only the case upon which the indictment declares a violation is to be tried. Extraneous or collateral offenses may be introducible to show intent, knowledge, or identity, and sometimes this may be inferred from system. But wherever the state turns aside and introduces collateral offenses, and it becomes necessary to prove the case, they are admitted with a view of ascertaining whether they are genuine. If not, they should not be introduced. This constitutes as many trials on the independent offenses as there are number of alleged independent offenses or collateral crimes. This diverts the minds of the jury and of the court from the case on trial. It involves trials separately upon each collateral offense to ascertain whether or not he is connected with that offense criminally. This was recognized by the court, and the jury instructed with reference to it. The court's charge in this connection is as follows:

"The state has introduced in evidence a number of checks with their indorsements, other than the check mentioned in the indictment, and upon which the defendant is being tried in this case, and with reference to these checks you are instructed: (1) That the said checks were only admitted in evidence for the purpose of showing the intent of the defendant and his system of conduct with reference to such checks, if in fact they show such intent and system of conduct, and they cannot be considered by you for any other purpose. (2) You are further instructed that you cannot consider for any purpose any such checks other than the J. T. Lowe check, except such, if any, as you may find and believe from the evidence beyond a reasonable doubt were altered or knowingly passed as true by the defendant without lawful authority and with intent to injure and defraud."

So it will be seen from the court's charge, as well as from what has been said with reference to the fact, that appellant was tried upon each collateral offense, and the jury was so informed, and that they must find from the evidence beyond a reasonable doubt that these checks were altered or knowingly passed as true by defendant without lawful authority. Then in order to arrive at a conclusion on the part of the jury as a predicate for the consideration of the illegality of these checks, they must first determine that they were fraudulent or altered. So it will be seen, before the jury could consider these collateral offenses as evidence, they must first determine, after hearing all the facts pro and con, that they were illegal and fraudulent before passing upon the intent of the appellant. If there were 150 to 200 of these checks introduced, the jury would necessarily, under the facts, under the issues and under the charge of the court, have to determine first whether these checks were fraudulent, and if so, then they might consider them with reference to the main case, but, unless they did so determine, they could not be so considered. That is the effect of the charge of the court. There is no question that appellant was tried on many of them on their merits prerequisite to their consideration as evidence. Under such circumstances these checks were not admissible. The charge above quoted, as well as the fifth subdivision of the charge, seems to be erroneous. Exception was reversed to the fifth subdivision because it was illegal in various ways, and especially that the jury must determine whether or not defendant believed these checks were genuine or false, and, if they should believe that the indorsements were made without legal authority and with intent to defraud, then they should consider them; otherwise they should not. The theory of the defendant was that, as the state was relying upon the fact that he passed the instrument, it being a case of circumstantial evidence, the jury must find that he, and not the jury, believed the check was not genuine. If he believed the check was genuine, he was entitled to an acquittal, because there would be no fraudulent intent. The jury must look at this case, as all the other cases, from the viewpoint of defendant, and not from their viewpoint. If defendant believed the check was not fraudulent, or that the indorsement was made with lawful authority, then he would not be guilty, although he may have passed it. But the court instructed the jury that it was their province to believe the indorsement was made without lawful authority and with intent to defraud. Of course, they must so believe, but as a prerequisite in a case of this sort they must also ascertain the fact that defendant so believed. This matter was a part of the case, and the jury should have been instructed to look at it from defendant's standpoint as to whether he believed the...