Preston v. State

• Decision Date: 21 December 1898
• Parties: PRESTON v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 581

PRESTON v. STATE.

Court of Criminal Appeals of Texas.

December 21, 1898.

Appeal from district court, Travis county; R. E. Brooks, Judge.

John W. Preston was convicted of forgery, and he appeals. Reversed.

Walton & Hill and Rector & Rector, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of five years. The indictment was for uttering an alleged forged deed to 160 acres of land in Atascosa county, by tendering said deed to the county clerk of said county for record. Appellant complains because the court admitted in evidence a deed from W. M. Burke to John W. Preston, on the ground that the execution of the said deed was not in issue, and was irrelevant and immaterial, and, in connection with said deed, in admitting also the evidence of Burke, Nicholson, and Maddox. We fail to see any error in this action of the court. The deed from Burke to Preston was so intimately connected with the transaction alleged against appellant as to be a part thereof. Said deed was the connecting link between the alleged forged deed and appellant, and showed his interest in the matter, and was executed at the same time, and the acknowledgment taken before the same notary. The testimony of the witnesses in regard to the entire transaction, we think, was admissible.

Appellant also complains that the court erred in admitting in evidence the testimony of H. G. Martin and M. F. Lowe, to the effect that there was pending in the district court of Atascosa county, Tex., a certain civil suit, in which the Hilburn heirs were plaintiffs, and John W. Preston defendant, and in permitting said witnesses to testify that the W. P. Felps survey was in controversy in said suit, and that defendant used in evidence the deeds from W. P. Felps to W. M. Burke, and from said Burke to John W. Preston. We believe, on objection, the court should have required a certified copy of so much of the proceedings in the district court of Atascosa county as the state desired to use. With said certified copy of the records before the court, we believe it would have been entirely competent for the witnesses to state that said deeds were used in said suit by appellant as evidence on his behalf. Although this was not the transaction charged against appellant, and might be considered another uttering of said deeds, yet it was competent testimony, as showing a use by appellant of said deeds, and illustrating his intent and purpose in having said deed recorded.

Appellant claims that the court erred in excluding from the jury the certified copy of the indictment in the district court of Bexar county, Tex., against John W. Preston, who was charged with the offense of forging the deed mentioned in the indictment herein, and in excluding from the jury the judgment of said district court of said county, showing the trial and acquittal of defendant on said charge. Appellant insisted that this evidence was admissible on his plea in bar, which, he says, was still before the court. We believe said testimony was properly excluded. Forgery and uttering the same forged instrument are two distinct offenses, and a conviction for the one is not a bar to prosecution for the other.

By appellant's fifth assignment of error, he questions the action of the court in admitting the testimony of J. H. Claridge, to the effect that he and Hallman, in the fall of 1894, met the defendant and A. H. Nicholson in each other's company, on South Flores street, in San Antonio. Claridge testified that in the fall of 1894, before the election, he was walking on South Flores street with H. L. A. Hallman, and they met the defend ant, John W. Preston, and A. H. Nicholson, coming up the street, and they seemed to be talking with each other. When they met, all the parties stopped, and Hallman introduced witness to Nicholson and Judge Preston. They passed a few words, and then walked off together. Appellant objected to this testimony, because it was long after the alleged offense, being 18 months after the execution of said deed and 9 months after it had been filed for record, and that the testimony was irrelevant and immaterial; that said transaction threw no light on the issues in the case, either as an independent fact, a collateral fact, or scienter, or as a corroborating fact. An examination of the record discloses that a crucial point in the state's case was to show that appellant, John W. Preston, knew A. H. Nicholson at the time of the execution of the deed from Felps to Burke; for, according to the proof, Nicholson personated Felps, the owner of the land, in the execution of the deed. There is no testimony outside of the testimony of Nicholson and Burke—and they were both confessed accomplices—that appellant, Preston, was acquainted with Nicholson at the time of the alleged forgery. If it should be shown that appellant knew Nicholson at that time, then he knew that he was not Felps, the owner of the land, and whom he assumed to personate. Of course, any competent evidence to show that these parties were acquainted at that time was admissible. But we do not believe that the fact that these parties were seen together 18 months after the alleged forgery and 9 months after the alleged uttering of said deed, in the absence of any other fact or...