Fry v. State

• Decision Date: 12 June 1918
• Docket Number: (No. 4979.)
• Citation: 215 S.W. 560
• Parties: FRY v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W. 560

FRY v. STATE.

(No. 4979.)

Court of Criminal Appeals of Texas.

June 12, 1918.

On Motion for Rehearing, October 22, 1919.

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

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

See, also, 203 S. W. 1096.

Taylor, Allen & Taylor and Wantland & Parrish, all of Henrietta, and Padelford, Turner & Doyle, of Ft. Worth, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was charged by indictment with forgery and with passing a forged instrument. His conviction was for forgery.

I. B. Padgett, county treasurer of Young county, made a check on the Graham National Bank, county depository, bearing date of January 16, 1914, for $244 payable to W. A. Moreland, which check, bearing the indorsements of W. A. Moreland and E. W. Fry, was passed by appellant, and it is charged, that W. A. Moreland was a fictitious person, and that his purported indorsement was a forgery. To sustain its allegation that Moreland was a fictitious person, that the indorsement was a forgery, and that appellant, knowing it was a forgery, fraudulently passed it, the state relied upon circumstantial evidence.

At the time the transaction occurred, appellant was county judge of Young county. The commissioners' court was engaged in certain road improvements in the conduct of which a number of persons were employed by the county. These persons collected the money due them for such work by causing to be presented to the commissioners' court an account upon which, when allowed by the court, the county clerk issued a warrant upon the treasurer drawn in favor of the owner of the account, and this in turn was taken up by the treasurer, who issued his check for the amount. The transaction in question purports to have resulted from an item thus dealt with. Appellant was county judge for six years. During part of his incumbency the commissioners' court met only once in three months, and during that time the custom was that accounts that were overdue were presented to him, and, receiving his approval, a warrant was issued by the clerk on the treasurer for a check. Subsequently, the court met once a month and modified the previously existing system so that they passed upon accounts in session.

There was evidence that the account in favor of Moreland was filed by appellant, bore his approval, and that he presented to the treasurer a warrant drawn against it and obtained from the treasurer the check in question. The evidence is direct and definite that when he passed it it bore the purported indorsement of Moreland. There was evidence introduced tending to show that no such person as Moreland, the payee in the check, was entitled to a claim against the county, that no man by that name did work upon the road in question, nor lived in the county, or was known to any of the witnesses who testified. There was evidence, also, that accounts against the county for road work had never reached an amount as much as that in the Moreland check. There was some evidence of parties who were familiar with appellant's handwriting that he wrote the account which was filed in favor of Moreland and that he wrote the indorsement, "W. A. Moreland," on the back of the check.

Supplementing the evidence thus summarized, the state introduced in evidence some 60 checks drawn in favor of various payees, drawn by the treasurer, indorsed by appellant and either collected or passed by him, and in connection therewith introduced evidence tending to show that these checks were based upon accounts which were approved by appellant, some of them before the regulation mentioned as existing after the court determined to meet once a month, and some of them prior to that time. Evidence was also given that these collateral checks and transactions were in favor of persons who could not be identified, who had never performed work on the road, and who were not entitled to any claim against the county. There was evidence that the indorsement of the payee on these checks resembled in certain particulars the handwriting of appellant. Five or six of the collateral checks mentioned were issued in favor of persons who did reside in the county, and these persons appeared as witnesses and denied all connection with the checks and with their purported indorsement thereon. There was evidence, in connection with many of these checks, that there were several issued for amounts that would have been due in the ordinary course of business to persons who were engaged in road work. It appears also from the record that many persons did work upon the road, some of them transient and some of them local people, and that many valid transactions took place through the same method that was pursued with reference to the check in question and thus introduced by the state. The collateral transactions bore various dates ranging from November, 1910, to October, 1914.

The appellant did not introduce evidence except from his cross-examination of the State's witnesses, which was directed to show various facts and circumstances tending to prove that the check in question was or might have been a valid transaction, and in this connection did show that the account upon which it was based appeared upon the minutes of the Commissioners' court as an allowed claim January 12, 1914, and that the warrant issued by the county clerk on the treasurer had been attached to the treasurer's report which was approved by the commissioners' court. He developed similar facts with reference to many of the other transactions which were proved.

Taking into account the great number of transient persons who worked on the road that had come into and gone out of the county, who might have done so without knowledge of the witnesses who were introduced by the state and drew the attention of the jury to these other matters, it might point to the view that, even if the indorsement on the check in question was forged, it was without the knowledge of appellant.

Very earnest objection is made to the admission in evidence of the various collateral transactions. The same subject-matter has been before the court in the appeal that was a companion case. See Fry v. State, 78 Tex. Cr. R. 435, 182 S. W. 331, and the same case on second appeal, 203 S. W. 1096, not yet officially reported. Such of these collateral transactions as were accompanied by sufficient evidence that they were forgeries, where appellant's connection with them was established, are believed by the writer to be admissible in evidence as bearing upon the issue of forgery and guilty knowledge. In the companion case recently decided, the writer drew attention to various authorities. What is said there is deemed applicable here, and the repetition of it is unnecessary. The companion case was reversed on the last appeal upon the ground that many of the collateral transactions were not only not shown to be forgeries, but there was no evidence of that fact.

This record presents a different aspect. All the parties in whose favor the checks purported to have been issued, and who could be found in the county or elsewhere, have been called as witnesses and condemned the transactions as spurious as far as they related to them, and there is evidence deemed sufficient to establish the fact that the other documents were issued to fictitious persons. On this subject we take from 19 Cyc. p. 1421, the following quotation:

"Proof that no person bearing the name signed to a check has any right to draw on the party to whom it is directed is prima facie evidence that the name is fictitious; and testimony by a person largely acquainted in the locality where defendant represents the maker of the instrument to live that he knows of no such person sustains a conviction, defendant offering no proof of the existence of such person; so where a bill of exchange was addressed to a certain person, living at a designated town, and had been apparently accepted by him, and a person of the name and place designated testifies that the acceptance is not his, and that he had made personal inquiries and consulted a directory without being able to discover any other person of that name in the place designated, this is evidence for the jury that the name in the acceptance is fictitious."

This text is also quoted by Greenleaf on Ev. Vol. 3, § 109.

The documents introduced in evidence bearing the purported forged indorsements were all shown to have passed through the hands of appellant. From the same volume of Cyc. p. 1422, touching this subject we quote the following:

"The fact that defendant had received the fruits of a forged instrument, while not itself sufficient proof that the instrument was forged by defendant, may, when taken in conjunction with other circumstances in evidence, be sufficient to warrant a conviction of defendant for forgery. Possession of a forged instrument by defendant is strong evidence that he forged it or caused it to be forged."

See, also, page 1414; Wharton's Crim. Ev. vol. 1, p. 135, § 35.

The collateral transactions have a limited effect, and the propriety and necessity on request that the court should advise the jury of this fact has been well established. On the introduction of the collateral documents after the court had overruled the objection to their admission in evidence, counsel for appellant at the time asked the court to place such limitation upon them as the law required. Whereupon state's counsel stated:

"The law limits them for the purpose of showing system, identity, intent, and motive, and that is the purpose for which we are offering them."

Appellant's counsel then requested the court that in addition to the limitations suggested by state's counsel that the jury be instructed what it was absolutely necessary for the state to prove before they could be considered for any purpose, stating:

"The law says they have got to prove they are forgeries...