Lasister v. State

• Decision Date: 23 March 1906
• Citation: 94 S.W. 233
• Parties: LASISTER v. STATE.
• Court: Texas Court of Criminal Appeals

94 S.W. 233

LASISTER v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1906.

Appeal from District Court, Potter County; Ira Webster, Judge.

Edgar Lasister was convicted of passing a forged instrument, and he appeals. Reversed and remanded.

Gustavus, Bowman & Jackson, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment contains four counts; the last of which forms the predicate for the verdict. That count charged the passing of the alleged forged instrument upon J. M. Wright, junior member of the firm of D. M. Wright & Son. Witness Hargrove testified that on the morning the check was passed, appellant came into the store and bought a hat, for which he charged him $1.50. In payment of which he handed Hargrove a check for $10. This is the alleged forged instrument. After receiving the check, Hargrove took it to J. M. Wright, who cashed it, and gave the money to Hargrove, who handed it to appellant. Appellant asked a charge to the effect that, under these circumstances, appellant would be entitled to an acquittal, if the check was passed to Hargrove, which was refused. Under the authority of Huntly v. State (Tex. Cr. App.) 34 S. W. 923, and Riley v. State (Tex. Cr. App.) 44 S. W. 498, this charge should have been given. The facts are closely analogous to those in Huntly's Case. That case was reversed because of the failure to give a similar charge, as was Riley's Case.

It is urged that the court should have given a charge on circumstantial evidence. This grows out of the fact that if the instrument was forged, it was only shown by circumstances, and these are of a rather negative character. This phase of the case is brought strictly within the rule laid down in Nichols v. State (Tex. Cr. App.) 44 S. W. 1091. It was therefore error to refuse the instruction submitting the issue of circumstantial evidence.

Appellant having been arrested was placed in jail. While so incarcerated, Wright went in his surrey to the jail, and in company with Keaton, deputy sheriff, took appellant therefrom, placed him in the surrey, and started to the country with him to find a man by the name of Johnson, from whom appellant said he obtained the check. They did not make this trip on account of appellant's refusal to go. He was not warned. A number of acts of appellant as well as his conduct while in the possession of these parties was introduced before the jury as evidence indicative of his guilt. Appellant's exception to the introduction of this testimony should have been sustained. The court excluded the remarks of appellant during the conversation between the parties, but admitted his acts. It has been well settled in this state, at least since Nolen's Case, 14 Tex. App. 474, 46 Am. Rep. 247, that the acts of a party under arrest, without being...