McGlasson v. State

• Decision Date: 12 May 1897
• Citation: 40 S.W. 503
• Parties: McGLASSON v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 503

McGLASSON v. STATE.

Court of Criminal Appeals of Texas.

May 12, 1897.

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

D. W. McGlasson was convicted of uttering a forged instrument, and appeals. Reversed.

J. E. Yantis, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of passing as true a certain forged instrument, in writing, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

The state's case was for passing as true an alleged forged vendor's lien note executed by one Knowles in 1893. It appears that said note was a part of a transaction involved in the sale of a tract of 40 acres of land. The land was in the name of one Russell. It appears, however, that he held said tract of land in trust for appellant, McGlasson, and that the notes were made payable by Knowles to Russell, and subsequently transferred to appellant. There were three notes, each for the sum of $266.70, executed on the 17th day of November, 1893, and payable in one, two, and three years thereafter. The forgery was alleged to be of the name of J. M. Knowles, the signer of said notes, and the vendee of said tract of land, and the passing was to one Roseborough. The state's evidence further tended to show that besides said genuine notes, which were executed by J. M. Knowles, appellant forged and uttered other notes similar in terms to said genuine notes; the charge being for uttering one of the said last-mentioned forged notes. The evidence further showed that the genuine notes, except one, about which there was no testimony, were negotiated in 1894 to Silliman & Co., at Ft. Worth, and the alleged forged notes were pledged as security to D. D. Roseborough in 1894, and the one appellant is charged to have uttered was bought by said Roseborough in 1895. The defense set up by appellant was to the effect that in executing said notes by Knowles there was a mistake, and in fact but two notes were executed, and that he subsequently called on Knowles, in 1894, and represented the mistake to him, and he agreed to and did execute three notes in lieu of the alleged original notes; and he also stated to said Knowles at the time that said original notes were lost or mislaid, and he indemnified said Knowles against said original notes. Said original notes were shown to have been negotiated to Silliman & Co., at Ft. Worth, in 1894, by the defendant. Defendant, however, explains that he had no knowledge of said negotiation, and claimed not to have negotiated them. On the trial the state introduced a number of transactions similar to that involved in the prosecution in this case; that is, some of them genuine sales of land, with genuine notes, and then the forging of notes similar to said genuine notes, and the negotiation of the same. These are the notes known as the Holcomb, Stringer, and Wallace notes, negotiated to E. Rotan; and the Clark notes, also negotiated to Rotan, executed November 5, 1895, and negotiated in February, 1896; and the Curtis notes, executed on the 24th of July, 1893, and negotiated to Mrs. Sewall in 1894. The state introduced testimony showing that these notes were all based on land transactions, and that duplicates of the genuine original notes were forged, and both the originals and the forged duplicates were negotiated by the appellant, and that most of these transactions involved several notes,—said notes being made payable in consecutive years. With the exception of the Curtis notes, which were executed in 1893, shortly before the execution of the notes in this case, the remainder of said notes were executed and negotiated subsequently, extending from 1894 to 1895. Appellant objected to the introduction of this testimony,—that is, testimony regarding other transactions,—on the ground that they were distinct offenses, not connected with the offense charged, and no part of the same, and not admissible. We have examined this question in the light of the authorities. It has been repeatedly held by this court that evidence of contemporaneous crimes was admissible when such evidence tended to establish identity in developing the res gestæ, or in making out the guilt of the accused by circumstances connected with the transaction, or to explain the intent with which the accused acted with respect to the matter charged against him. See House v. State, 16 Tex. App. 25; Kelley v. State, 18 Tex. App. 262; Holmes v. State, 20 Tex. App. 509; Alexander v. State, 21 Tex. App. 407, 17 S. W. 139; Oliver v. State, 33 Tex. App. 541, 28 S. W. 202; Whart. Cr. Ev. §§ 31-48 et seq. And, when the object of such collateral matter is to show system, subsequent as well as prior offenses, tending to establish identity or intent, can be put in evidence. See Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Whart. Cr. Ev. §§ 37, 38. But it is insisted that, to be part of a system, it must be connected with and part of the same offense. This, however, is not correct. In Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564, which was a case of forgery, other distinct forgeries were admitted in evidence. See Heard v. State, 9 Tex. App. 1. To the same effect, see, also, Com. v. Price, 10 Gray, 472, and Rex v. Smith, 4 Car. & P. 411. And the same principle is applicable to other offenses. In Reg. v. Bleasdale, 2 Car. & K. 765, which was a case of theft of coal, it appearing that the coal was stolen from a shaft, and there were a number of takings, the court say, "But, in order to show that when the prisoner took the coal of Mr. Gunning in number ten drift, he was out of his boundary, I permit it to be proved that he has gone out of his boundary in many other instances, and into the property of other persons, taking in all 15,000 yards of coal." In that case other distinct takings were allowed to be proved in order to show that the prisoner's defense, to wit, that he did not know he was out of his own boundary, was but a mere pretext. Brown v. State, 26 Ohio St. 176, was a case where a certain horse doctor had at different times and places injured other horses for the purpose of obtaining fees for curing the same. He was indicted for injuring one horse, and proof of the injuries to the others was held admissible. See, also, Kramer v. Com., 87 Pa. St. 299, and Thayer v. Thayer, 101 Mass. 111. The forgery and the utterance thereof admitted in evidence were not part of the same transaction as the forgery charged, and were not contemporaneous in point of time. One of the instances preceded that charged in the indictment, and the others followed, covering a space of more than a year; but they were similar in the method adopted of forging and of uttering to that charged against the defendant and shown by the evidence. Appellant, however, denied the forgery, and introduced evidence tending to show that the paper was not in fact a forgery, but was executed by the prosecutor, Knowles,...