Hanks v. State

• Decision Date: 02 May 1900
• Citation: 56 S.W. 922
• Parties: HANKS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 922

56 S.W. 922

HANKS v. STATE.

Court of Criminal Appeals of Texas.

May 2, 1900.

Appeal from district court, Falls county; J. A. Martin, Special Judge.

Ernest Hanks was convicted of forgery, and he appeals. Reversed.

J. W. Spivey, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of forgery, and given two years in the penitentiary.

Appellant insists the indictment is defective. The charging part of the indictment is as follows: "That Ernest Hanks * * * did then and there unlawfully, without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing to the tenor following: `Mr. T. B. Elsberry please let Ernest Hanks have 5.00, and I will pay you when I come back to town again, and oblige, W. J. Hunnicutt. 5/12/1899.' By the figures in said instrument, to wit, `5.00' is meant `five dollars,' — against the peace and dignity of the state." The indictment is good. Hanks v. State (Tex. Cr. App.) 54 S. W. 587; Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248.

The appellant contends "the court erred in failing to charge on circumstantial evidence in respect to the making of the said instrument, there being no evidence tending to show that defendant wrote said instrument, or that it was his handwriting; the only evidence being that he was seen in possession of it." This exception to the charge was raised in his motion for new trial. Our views on this subject are so aptly and ably expressed by our assistant attorney general that we quote the following excerpt from his brief filed herein, to wit: "The witness Elsberry (Tr. p. 3) testified: `I said to defendant that Wens Hunnicutt was in town that day, and asked defendant why Hunnicutt did not pay him [defendant] the money himself. Defendant replied that, as he was coming into town, he met Mr. Hunnicutt going out, and that he [Hunnicutt] gave him the order.' This is the nearest approach to an admission that appellant was the maker of the instrument forged, except in so far as his possession of the forged instrument demonstrates that fact. Appellant is charged with making a false instrument, and not with uttering the same. There are circumstances which would be sufficient to sustain the verdict, being upon an indictment charging appellant with the making of the forged instrument, but this issue is demonstrated inferentially. The state concedes that it is a case of circumstantial evidence. In the Nichols Case, 39 Tex. Cr. R....