Newby v. State, 37012

• Citation: 384 S.W.2d 133
• Decision Date: 24 June 1964
• Docket Number: No. 37012,37012
• Parties: Delbert NEWBY, Appellant. v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 133

384 S.W.2d 133

Delbert NEWBY, Appellant. v. The STATE of Texas, Appellee.

No. 37012.

Court of Criminal Appeals of Texas.

June 24, 1964.

On Motion to Reinstate Appeal Oct. 28, 1964.

Rehearing Denied Dec. 9, 1964.

Richard & Ferguson, by Robert C. Ferguson, Dalhart, for appellant.

William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for the offense of forgery, with punishment assessed at two years in the penitentiary.

The recognizance appearing in the record is shown to have been entered into by the appellant and only one surety. Art. 817, Vernon's Ann.C.C.P., which prescribes the form of recognizance in a felony appeal, provides that the recognizance be entered into by the defendant and two sureties.

The recognizance, not being in substantial compliance with the statute, is insufficient to confer jurisdiction upon this court. Wilkins v. State, 130 Tex.Cr.R. 36, 91 S.W.2d 354; Price v. State, 164 Tex.Cr.R. 312, 299 S.W.2d 141; Mayfield v. State, Tex.Cr.App., 382 S.W.2d 940, decided May 6, 1964.

The appeal is dismissed.

Opinion approved by the court

ON MOTION TO REINSTATE APPEAL

A proper appeal bond having been filed, the appeal is reinstated.

The indictment in separate counts charged appellant with the offenses of forgery and passing as true a forged instrument, the alleged forged instrument set out in the indictment, according to its tenor, being a check dated December 18, 1961, at Albuquerque, New Mexico, drawn on the Albuquerque National Bank for the sum of $125, payable to Harold Allen, and purportedly signed by Wylie Hudman.

At the trial, the state's prosecuting witness, Bob Jones, testified that on or about December 18, 1961, the appellant came into his place of business in the city of Dalhart and presented to him the check for $125 described in the indictment (state's exhibit #1) and requested that he cash it. He further testified that he cashed the check, gave appellant the sum of $125, and that when he sent the check to the bank it was returned.

Wylie Hudman, whose name was purportedly signed to the check in question, as maker, upon being called as a witness by the state, testified that he did not write the check and that the signature on the check was not his. He further stated that he did not give appellant or anyone else permission to sign his name to the check.

Paul W. Hanson, a questioned-document examiner for the Texas Department of Public Safety, and shown to be qualified as a handwriting expert, testified that he had compared the appellant's known signature on two instruments with the writing and signature on the check in question and that they were written by the same person.

It was also shown by the state's testimony that appellant was returned to Dallam County, in January, 1963, from Fairbanks, Alaska, by Sheriff R. C. Johnson, after being arrested by the officers in that state, and that, after making bond, appellant failed to appear when the case was called for trial.

Testifying as a witness in his own behalf, appellant denied that he wrote the check in question and swore that he was in the State of New Mexico on the date the check was passed to the prosecuting witness. Appellant's wife, upon being called as a witness, corroborated his alibi testimony.

The court in his charge submitted to the jury the issue of appellant's guilt of both forgery and passing a forged instrument, as charged in both counts of the indictment.

Two verdicts were returned into court by the jury. One verdict found appellant guilty of forgery, as charged in the first count of the indictment, and assessed his punishment at confinement in the penitentiary for two years, and the other verdict found him guilty of passing a forged instrument, as charged in the second count of the indictment, and assessed his punishment at confinement in the penitentiary for two years.

Judgment was entered by the court upon the verdict of the jury finding appellant guilty of forgery, as charged in the first count, and assessing his punishment at confinement in the penitentiary for two years.

We first overrule appellant's contention that the evidence is insufficient to support the conviction.

The testimony of the state's witness Bob Jones, identifying appellant as the one who presented the forged check to him, was sufficient to corroborate the testimony of the handwriting expert and take the case out of the operation of the statute, Art. 731, Vernon's Ann.C.C.P., which provides that proof by comparison, only, shall not be sufficient to establish the handwriting of a witness who denies his signature, under oath. Lieb v. State, 163 Tex.Cr.R. 1, 288 S.W.2d 110, reversed on other grounds.

We also overrule appellant's contention that the court erred in rendering the judgment finding him guilty of forgery upon the two jury verdicts which found him guilty of both forgery and passing a forged instrument.

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