Grooms v. State

• Decision Date: 22 March 1899
• Citation: 50 S.W. 370
• Parties: GROOMS v. STATE.
• Court: Texas Court of Criminal Appeals

50 S.W. 370

GROOMS v. STATE.

Court of Criminal Appeals of Texas.

March 22, 1899.

Appeal from district court, Travis county; R. E. Brooks, Judge.

G. G. Grooms was convicted of forgery, and appeals. Affirmed.

R. W. Hudson, S. B. McBride, and Walton & Hill, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of six years, and he appeals.

Appellant made a motion in arrest of judgment, on the ground "that said indictment is not sufficient to support the conviction, in that it is alleged therein that the forgery charged was committed in Atascosa county, Texas, but sets out and quotes the alleged forged deed, which purports on its face to be executed in Bexar county; and does not allege any act other than said allegation of forgery constituting the offense to have been committed in Atascosa county." There is nothing in this contention. Article 553 of the Penal Code authorizes the offense of forgery of land titles to be prosecuted in the county where the forgery was committed, or in the county where the land is situated about which the offense of forgery was committed. It is shown that the land in question is situated in Atascosa county.

Appellant also assigns as error the fact that the venue was changed by agreement to Travis county. Article 553, supra, authorizes prosecutions for forgery of land titles to be prosecuted also in Travis county; that is, Travis county, as well as the county where the land is situated, has original jurisdiction. But the complaint here is that, while the prosecution could have originated in Travis county, yet there was no authority to transfer the venue by agreement from Atascosa to Travis county; it being insisted in this connection that consent will not confer jurisdiction. Inasmuch as Travis county has original jurisdiction, it occurs to us that it was competent to transfer the jurisdiction from Atascosa to Travis county. If Travis county, under no circumstances, could entertain jurisdiction of the offense, then consent would not give jurisdiction. But the venue was properly changed to Travis county on another ground. The venue was changed from Atascosa county on some account. While the attorneys agreed to the change on account of the existing prejudice, of course the court itself must have moved in the matter; and it was authorized under article 613, Code Cr. Proc., to change the venue on its own motion. But this article authorizes the change to be made to any county in his own or an adjacent district. Travis county is not in the district adjoining the district in which Atascosa county is situated. But article 619, however, authorizes that if it be shown in the application for a change of venue, or otherwise, that all the counties adjoining that in which the prosecution is pending are subject to some valid objection, the cause may be removed to such county as the court may think proper. In support of the change of venue, it will be presumed that the court acted properly in making the change to Travis county, and that the court was informed by some means that the same reasons existed in the adjoining counties that existed in Atascosa county for the change of venue; and in such case it was authorized to change the venue to any other county, as it might think proper.

Appellant made a motion for a severance as between himself and F. E. Grooms. The motion shows that they were indicted in separate indictments, and alleges in general terms that they were indicted for one and the same transaction. This was denied by the state, which filed a controverting affidavit on the subject. The proof showed very clearly that they were separate and distinct transactions. If the plea itself had gone into details, it would have shown a distinct transaction from that charged against appellant; that is, the indictment against F. E. Grooms set up the forgery of a different deed. True, it was with regard to the same land, and was a link in the title; but it was none the less a separate and distinct forgery, and no part of the forgery for which appellant was indicted. Appellant complains that it was improper for the court to authorize any inquiry or investigation in order to determine whether or not it was a different transaction; and that when he made his application, and recited the fact, the hands of the court were tied, and it was compelled to concede the full truth of the general affidavit, and grant the severance. We do not believe this contention is correct; and it was entirely competent for the state, in reply, to show the fact that they were different transactions; otherwise, in any case the state would be liable to be imposed on by general affidavits claiming a severance. The cases cited by appellant of King v. State (Tex. Cr. App.) 34 S. W. 282 and Shaw v. State (Tex. Cr. App.) 45 S. W. 599, are not in point. No question was made in said cases that the indictments were for distinct transactions. We hold that it is entirely competent for the state, in reply to a motion to sever, to set up and establish the real facts; and if these show that they are different and distinct transactions, it is proper to overrule the motion to sever.

On the trial the state offered in evidence a photographic copy of the deed from Drury Gardner to J. W. Willson, bearing date August 6, 1866. This was a copy of the alleged forged instrument. The state also offered in that connection the certificate of acknowledgment to said deed, and also a photographic copy of the deed from J. W. Willson to G. G. Grooms of the same land, bearing date October 3, 1896, and the certificate of acknowledgment thereto, bearing date the 3d of October, 1896. The certificates and last-mentioned deed were offered in evidence as bearing on the intent, etc., of the defendant. In connection with the introduction of said deeds and said photographic copies, and as a predicate therefor, the state introduced in evidence notice to the defendant and his attorneys to produce said deeds, which were charged to be in their possession, so that they might be used as evidence. And the state also offered the testimony of the photographer who took the said photographic copies, tending to show their correctness. Appellant objected to this evidence, because photographic copies could not be used in evidence; for a sufficient predicate had not been laid for the introduction of said copies, by showing that they were accurate copies. In our opinion, the notice served on appellant and his attorneys to produce said deeds was sufficient; and, besides, the record shows that he had said deeds in his possession, and that he did not intend to produce them. As to the conditions under which said photographic copies were taken, and their accuracy in comparison with the originals, the state introduced the photographer; and his testimony, we think, furnished a sufficient predicate to authorize their introduction as accurate copies of the originals. True, the authorities teach that, before secondary evidence of this character can be resorted to, it must be shown that the copies offered are accurate copies. Eborn v. Zimpelman, 47 Tex. 503; Houston v. Blythe, 60 Tex. 506; Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 138; 2 Jones, Ev. § 597. It is not necessary here to reiterate the testimony of the photographer on this matter. It is copied in full in the record, and is quite lengthy. He testified that the photographs were exact as to words and letters, but there may have been a little difference in color; could not swear positively; that the angles and strokes of the letters were accurate; that there might have been a slight difference in length across the copy; that the forms of the letters were accurate; that, after he made the copies from the plate, he did not compare them with the original, but, from the process and conditions surrounding the taking, he knew them to be accurate; that he made the measurements with his eye; that, from his knowledge of photography, the copies taken were bound to be true copies. We do not believe it can be seriously contended at this day that photographic copies of original writings, where the writings are shown to be in the possession of the adverse party, and are not produced on notice, cannot be used in evidence. The authorities all teach the contrary. Rice, Cr. Ev. §§ 101-103; 2 Rice, Civ. Ev. c. 52, p. 1163 et seq.; Endl. Cr. Ev. p. 62. And the same authority has been repeatedly recognized by our own courts. Howard v. Russell, 75 Tex. 171, 12 S. W. 525; Thomas v. State, 18 Tex. App. 213; Eborn v. Zimpelman, 47 Tex. 503. Mr. Rice, quoting from Udderzook's Case, 76 Pa. St. 340, uses this language: "It is evident that the competency of the evidence in such case depends on the reliability of the photograph as a work of...