J. W. G. D. Henderson v. State

• Decision Date: 01 January 1855
• Citation: 14 Tex. 503
• Parties: J. W. G. D. HENDERSON v. THE STATE.
• Court: Texas Supreme Court

14 Tex. 503

J. W. G. D. HENDERSON

v.THE STATE.

Supreme Court of Texas.

1855.

Where the statute punished any person who should “pass or use as true any such counterfeited or altered writing mentioned in the preceding section, knowing the same to be such, with intent that any person shall be defrauded,” it was held that a count which omitted the words “knowing the same to be such” was bad, although the passing was alleged to have been done feloniously and falsely.

Where the clerk of the County Court, on the trial of an indictment for forging a deed, testified that the defendant had handed him for record a deed, of which the clerk produced a copy taken from the record of the registration of said deed, and that after the same had been recorded defendant paid for the registration thereof, whereupon he returned the same to the defendant, notice having been given to the defendant to produce the original, and he having failed to do so, it was held that the copy was properly admitted as secondary evidence of the contents of the original.

See this case as to the length of notice necessary to the defendant in a criminal case to produce papers, and as to the exceptions to the rule which requires such notice.

See this case as to circumstantial evidence in cases of forgery. (Note 75.)

Where the defendant was indicted for forging a deed, and the State, having failed to obtain the deed, which was traced to the possession of the defendant, relied on proof of the death of the nominal grantor before the date of the deed, and it was proved that six or eight years before the trial the nominal grantor resided in Galveston, where he had a family, he being about sixty years of age; that at about that time a general rumor prevailed in said city that he had then recently died in the city of New Orleans; that the same was published in the newspapers; that his family went into mourning, and that an obituary notice of his death was published in New Orleans at the time, where a rumor to the same effect also prevailed, it was held that said testimony was competent and sufficient to warrant the jury in finding that the nominal grantor was dead at the date of the deed, it being dated within twelve months before the trial. (Note 76.)

The fact of forgery itself will be sufficient to imply an intention to defraud; or at least it will be sufficient if, from the circumstances of the case, the jury can fairly infer that it was the intention of the party to utter the forged instrument; and a fortiori if, as in this case, there is proof that he did utter it. (Put it on record, being a deed for land.)

It is well settled, it is true, that the forging of an instrument which on its face is void is not indictable. But where a forged deed for land is valid on its face it is indictable, although the reputed grantor be dead; nor is it necessary to prove that such reputed grantor had title or claim to the land.

Where a forged deed purported to be made in the county of Harris, representing the grantor as a resident of Galveston, and the grantee (the party charged with the forgery) as residing in the county of Milam, and there was no evidence of the residence of the accused elsewhere than as described in the deed, and no other evidence of the making of the deed in the county of Anderson, where the venue was laid, than the uttering of the deed or having it recorded in that county, it was held that the evidence was not sufficient to authorize the jury to find that the forgery was committed in Anderson county. (Note 77.)

Appeal from Anderson. Indictment for forging and counterfeiting a deed in the name of John Price to several tracts of land, one of which lay in Anderson county. The deed was set out in the indictment. It purported to have been made in the county of Harris, and to be dated June 5, 1854, from said Price to the defendant, reciting the residence of Price at Galveston, and that of the defendant in Milam county, and witnessed by two witnesses.

The indictment contained a second count, which was quashed on motion of the defendant. Said count was as follows: “That the said James W. G. D. Henderson, on the day and year aforesaid, in the county aforesaid, feloniously and falsely did pass and use as true a certain false, forged, and counterfeit deed, which said false, forged, and counterfeit deed is as follows, that is to say: (Here the deed was copied.) With intent to defraud, contrary to the form of the statute,” &c.

The indictment was presented March 27, 1855. On the same day the defendant was served with notice to produce the original deed. The trial was on the 30th of same month. The term of the court had commenced on the 19th. The defendant not producing said deed, the State was permitted to prove by Vaughan, the clerk of the County Court of Anderson county, that defendant filed with him for record a certain deed, of which the following is a certified copy taken from the record of the registration of said deed; that is to say: (Here copy, same as in indictment, with the notarial certificate added. The copy was certified by Vaughan, the witness.) To the introduction of said copy deed as evidence the defendant objected, but the objection was overruled, and the State was permitted to read the copy without the notarial certificate, which was excluded, to which ruling the defendant excepted. The State also proved by said Vaughan that the defendant filed with him for record a deed, of which the above is a copy, and that said original deed had the notarial certificate thereupon, of which the foregoing is a true copy; but the court still refused to allow said copy of said notarial seal to be read. The notarial certificate was of the acknowledgment of the deed by the grantor, in Montgomery county, September 13, 1854. Said Vaughan also proved that the defendant made a satisfactory arrangement with him for the payment for the registration of said original deed and the said notarial certificate, whereupon he returned the same to the defendant, and has not since seen said deed or certificate; that this occurred during the fall of last year. Vaughan also testified that a portion of the body of said original deed, to wit, the words “fee simple,” was in the handwriting of the defendant, but he could not state that the signature, John Price, was in the defendant's handwriting. There was no proof from any one that said deed had since been seen in or out of defendant's possession.

The State next introduced three witnesses, to wit, Scott, Menard, and Doswell, who testified that one John Price, some years ago, resided in the city of Galveston, Texas; that witnesses, about six or eight years since, were acquainted in the said city and with the wife and children of said John Price, who was then about sixty years of age; that at the time aforesaid (six or eight years ago) a general rumor prevailed in said city of Galveston that the said John Price had then recently died in the city of New Orleans, in the State of Louisiana; that said rumor was also published in the newspapers, and acted on as true by the family of said supposed deceased, who went into mourning. Scott also testified that he then lived in New Orleans; that he there saw an obituary notice of the death of said John Price; and that a rumor prevailed to that effect. To each divisible portion of said testimony defendant excepted separately, but the exceptions were severally overruled.

On cross-examination of said Menard he stated that said John Price (supposed to have died) left a son called John Price, now some thirty years of age, whom he frequently saw in Galveston and in Texas before and after the rumored death of his father. Said Doswell also testified, when interrogated by the State, that the permanent residence and business place of the said younger John Price was, before and at the time of his father's rumored death, at said city of New Orleans, where, in commercial transactions, he usually signed his name at that time, John Price, jr.; but he does not know how he signed it subsequently to his father's death; that since the reported death of the elder John Price the younger John Price has frequently been in Texas and about Galveston, where his mother and sisters continued to reside, and still reside, the same having been the domicile of said elder John Price at the time of his reported death. There was no proof of the death of the John Price except as above stated.

Here the State closed its testimony.

The defendant offered in evidence the certified copy of the notarial certificate to the deed which had been excluded in taking the evidence for the prosecution, and in connection therewith offered a witness to prove that the notary who purported to give said certificate was a real person and a resident of Montgomery county. This evidence was rejected and the defendant excepted.

The above was all the evidence in the case.

In the view of the case taken by this court the instructions given and refused are not material. Verdict of guilty. Judgment accordingly. Motion for new trial overruled. Appeal, &c.

F. W. Bowdon, for appellant.

I. The copy deed offered in evidence was but the copy of a copy, and not being an examined copy, was inadmissible. The original should have been produced, or if it could not be, then the next best evidence should have been resorted to. (1 Starkie Ev., 192 and 193; United States v. Britton, 2 Mason, 468.)

II. The notice to the defendant to produce the original being given only two days before the trial, and there being no proof that it was in his possession at that time, and none that it was destroyed, the secondary evidence relied on was not competent. (Rex. v. Haworth, 19 Eng. Com. Law R., 502; 4 Carr. & Payne, 255.)

III. The notarial certificate, being, as was shown, on the original deed and registered with it, and being connected with the copy deed read in evidence by the State, should have gone to the jury in connection therewith, the State having no right...