Peterson v. State, 25552

• Decision Date: 05 December 1951
• Docket Number: No. 25552,25552
• Parties: PETERSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 110

247 S.W.2d 110

157 Tex.Crim. 255

PETERSON v. STATE.

No. 25552.

Court of Criminal Appeals of Texas.

Dec. 5, 1951.

Rehearing Denied Feb. 20, 1952.

Second Motion for Rehearing Denied April 2, 1952.

Further Rehearing Denied April 30, 1952.

See 248 S.W.2d 130. Philip R. Overton, P. P. Ballowe, Austin, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is passing as true a forged instrument; the punishment, two years.

The State offered testimony that four checks made payable to the order of W. Robinson, each in the sum of $29.75, signed 'J. K. Johnson', dated 'March 3, 1950', marked 'Labor', were passed by appellant to four feed stores in the city of Weatherford between the hours of 4:00 p. m. and 6:00 p. m. in the afternoon on said date. In each case, the person receiving the check stated that appellant purchased a sack of feed, endorsed the check 'W. Robinson, Rt. 3' in their presence, secured the difference in cash, and never returned to pick up the feed.

J. K. Johnson, a resident of the vicinity, testified that he did not write the checks nor authorize their being written. The three check transactions, not charged in the indictment, were admitted on the issue of identity, intent and system.

Appellant did not testify but offered proof of an alibi.

Appellant called as his own witness one D. E. Wheeler, the operator of the Keeler polygraph, or lie detector machine, for the Texas Department of Public Safety, and proved by him that appellant had voluntarily submitted to a lie detector or polygraph test.

Bill of exception No. 1 complains that 'defendant desired to have said witness testify as to the facts observed by him in the giving of such test to the defendant', and the court sustained the State's objection on the theory that the proferred testimony of the polygraph operator and the facts concerning the test would invade the province of the jury and constituted a mere expression of opinion as to the guilt or innocence of the defendant.

The bill is defective in that it wholly fails to show what the excluded testimony would have shown in behalf of the appellant had it been admitted. Singleton v. State, 150 Tex.Cr.R. 372, 200 S.W.2d 1015, and King v. State, 151 Tex.Cr.R. 410, 208 S.W.2d 676.

Further, it will be noted that this Court has not yet authorized the admission of such evidence on behalf of the State, and, until this is done, it cannot be admitted on behalf of the defendant.

Bill of exception No. 2 complains that the State was permitted to prove the passing of the three Weatherford feed checks other than the one described in the indictment.

The rule authorizing the admission of proof of other transactions to show guilty intent, knowledge or systematic purpose to defraud in forgery and passing cases is best stated in Texas Jurisprudence, Volume 19, Section 54, page 865.

Bill of exception No. 3 complains that the trial court refused to permit five witnesses from Cleburne and one expert from the Department of Public Safety to testify for appellant. We find a recitation in the bill that all of said excluded testimony relates to the question of identity of the defendant. For this Court to permit the grouping in one bill of complaint concerning the exclusion of the testimony of six different witnesses,...