Gordon v. State

• Decision Date: 14 February 1940
• Docket Number: No. 20960.,20960.
• Citation: 137 S.W.2d 1023
• Parties: GORDON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1023

137 S.W.2d 1023

GORDON v. STATE.

No. 20960.

Court of Criminal Appeals of Texas.

February 14, 1940.

Rehearing Denied March 27, 1940.

Commissioners' Decision.

Appeal from District Court, Garza County; Louis B. Reed, Judge.

Walter Gordon was convicted of passing a forged instrument, and he appeals.

Affirmed.

Price & Moss, of Post, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is knowingly passing a forged instrument; the punishment assessed is confinement in the state penitentiary for a term of two years.

The testimony adduced by the state, briefly stated, shows that on October 21, 1939, appellant passed to Ashley Lawson a forged check in the amount of $10.50, purporting to have been drawn by L. W. Kitchen upon the First National Bank of Post, Texas and payable to R. E. Webb. L. W. Kitchen testified that the signature to the check was not in his handwriting, and that he had not authorized any person to sign his name thereto. It was further shown that on the same day and only a few hours prior to the time appellant passed the check in question to Lawson, he passed a check in every respect similar (except in amount) to Bud Speck. Appellant did not testify or offer any affirmative defense.

Appellant's first contention is that the evidence is wholly insufficient to sustain his conviction in this: That the State failed to show appellant had knowledge that the instrument in question was forged at the time he passed it. Knowledge of that fact may be shown by circumstances or may be inferred from facts and circumstances proven. The proof in the instant case shows that appellant was in possession of two forged checks on the 21st. day of October, 1939. This, in our opinion, is sufficient to authorize the jury to reasonably conclude that appellant knew the check in question was a forgery at the time he passed it. See 26 C.J. 961 and 962; Hagar v. State, 71 Ga. 164.

Appellant also contends that there is a fatal variance between the allegations in the indictment and the proof, in that it was averred in the indictment that the figures "10-21-1939" appearing on the face of the indictment, meant and was intended to mean October 21, 1939, while there is no proof of what was meant by said figures. The testimony of Lawson shows that appellant passed the check in question on October 21, 1939, and the check bearing said figures was introduced in evidence. This met the innuendo averments. A somewhat similar question to the one here presented has been recently passed on by this Court in the case of Daily v. State, 135 Tex.Cr.R. 655, 122 S.W.2d 628. See also Boles v. State, 13 Tex.App. 650, 657; Dixon v. State, Tex.Cr.App., 26 S.W. 500, 501; Duncan v. State, 90 Tex.Cr.R. 479, 236 S.W. 468; Rouse v. State, 98 Tex.Cr.R. 586, 267 S.W. 275.

By bill of exception number one, appellant complains of the introduction in evidence of the second check passed by appellant to Bud Speck on the same day and which was in every respect identical with the check which was the basis of this prosecution, except the amount therein specified. It was shown that this second check was also forged. This check was admissible upon the issue of intent and knowledge. See Stratford v. State, 108 Tex.Cr.R. 255, 299 S.W. 418; Escue v. State, 106 Tex.Cr.R. 506, 294 S.W. 202 and authorities cited; 18 Tex.Juris., p. 70-74; Hanson v. State, 139 S.W.2d 573.

Appellant urged a number of objections to the court's charge. The main objection here urged thereto is that the court instructed the jury that if they believed from the evidence beyond a reasonable doubt that the instrument set out in the indictment was forged, and they...