McGlasson v. State

• Decision Date: 24 November 1897
• Citation: 43 S.W. 93
• Parties: McGLASSON v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 93

McGLASSON v. STATE.

Court of Criminal Appeals of Texas.

November 24, 1897.

Appeal from district court, Bell county; John M. Furman, Judge.

D. W. McGlasson was convicted of forgery, and he appeals. Reversed.

J. E. Yantis and Pierce & Felts, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at imprisonment in the penitentiary for a term of two years; hence this appeal.

The forgery charged was that of a note for $660, dated Troy, Tex., November 5, 1895, and due January 1, 1897, bearing interest at 10 per cent. per annum. The note was made payable to D. W. McGlasson, or order, at the office of McGlasson & Co., at Troy, Tex., and purported to have been executed by W. T. Clark. Said note also retained a vendor's lien on 100 acres of land, part of the C. Bendle survey, in Bell county. The testimony for the state showed, by W. T. Clark himself, that the signature, "W. T. Clark," was a forgery, and that the handwriting, as testified by experts, appeared to be that of the appellant. The testimony on the part of the appellant tended to show that the body of said note was written by appellant, and that L. M. Cann signed the name "W. T. Clark" to said note, and Clark, who was present, authorized the same, and affixed his mark thereto, in connection with his name. In addition to this, there was other testimony, of a collateral character, tending to corroborate and support the respective theories of the parties.

Appellant asked the court to instruct the jury to return a verdict of not guilty, on the ground that no venue had been proved; but this the court refused to do, and appellant reserved his exception to the action of the court. The question presented as to this bill of exceptions is, does it sufficiently comply with the amendment to article 904 adopted by the 25th legislature? See Laws 25th Leg. p. 11. The act in effect provides that, as to the venue in all cases, the court shall presume that it was proved in the court below, unless it was made an issue there and it affirmatively appears to the contrary by a bill of exceptions, properly signed and allowed by the judge, or proved up by by-standers, as is now provided by law, and incorporated in the transcript, as required by law. It occurs to us that this statute requires this court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue, or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law. If, however, it be conceded that the bill, as contained in the record, would require us to look to the statement of facts to see whether or not the venue was sufficiently proved, then, in our opinion, the evidence sufficiently established the venue of the case. The testimony showed that appellant, at the time of the alleged forgery, was doing business at Troy, in Bell county; the note bore the date, Troy, Bell county, November 5, 1895. It was made payable at the office of appellant, at Troy, in Bell county. Rotan, to whom the note was negotiated in December, 1895, shortly after its purported execution, stated that he lived in Waco, which was connected by railroad with Troy, Bell county, and about an hour's ride therefrom; that in December, 1895, defendant came from Troy, in Bell county, on the "Katy Railroad," to Waco, and came to his office at the bank in Waco, and told him he was just from Troy, and brought the note with him which he is charged in this case with forging, and he there received from him said note. This, in our opinion, was sufficient proof of venue, aside from the testimony of the appellant himself, which tends to corroborate the state's evidence on venue in every particular.

Appellant offered to prove by himself, when he was on the stand as a witness in his own behalf, that on the 19th of February, 1896, he gave to E. Rotan (the state's witness, to whom the proof showed the note in question had been passed, and after said Rotan had testified as a witness to important criminating facts) a bill of sale to defendant's entire stock of merchandise, worth $15,000, and to 65 bales of cotton, and 12,000 bushels of oats, and $72,000 worth of promissory notes, as collateral security to pay the said Rotan the sum of $20,000; and defendant offered to prove that that was all that he owed the said Rotan or his bank; and that said Rotan had always since refused to have a settlement with defendant to see how their accounts stood with each other. On objection by the state, said testimony was excluded, and defendant excepted to the same. The relevancy of this testimony is not made manifest by the bill of exceptions, and it occurs to us that there was no error in the action of the court in excluding the same. We cannot see how said testimony would tend to disprove the fact of forgery charged against the appellant. Concede that he surrendered to Rotan all of his assets, and that Rotan was his sole creditor (which, however, is not shown in the bill), and that his assets far exceeded his liabilities, still this testimony would not, in the absence of some other showing, have any bearing on the question as to whether or not appellant forged the note in controversy. The mere fact that Rotan had testified to important criminating facts would not of itself make such testimony admissible. It may be possible that Rotan may have testified to a state of facts which made said evidence relevant; but the bill does not show this, nor does the bill show the object of this evidence. In our opinion, the court did not err in excluding said testimony.

On the trial, appellant presented the following bill of exceptions to the introduction of testimony on the part of the state: "Be it remembered, that on the trial of the above entitled and numbered cause, when the state's witness E. Rotan was on the witness stand, he was asked the question by the state's counsel if he ever showed to W. T. Clark the note charged to have been forged by the indictment in this cause, together with another note in the same amount, purporting to be made at the same time and place, and purporting to be signed by the same party, and, if so, when was it, and what did said W. T. Clark say with reference to executing said notes or authorizing any other person to do so for him, to which question the defendant objected, on the ground that what said W. T. Clark said in the absence of defendant was hearsay and incompetent for any purpose; but the court overruled all of said objections, and permitted the said E. Rotan to answer said question as follows, and permitted said answer to go to the jury as evidence. His answer was as follows, to wit: `It was shortly after defendant's business failure I saw W. T. Clark, and told him I had some notes against his land; but at this time I did not tell him the amount of the notes. A few days after this I saw him again, and showed him the notes, or told him the amount of each note; and he repudiated them,...