Tarwater v. State
| Decision Date | 28 April 1954 |
| Docket Number | No. 26824,26824 |
| Parties | TARWATER v. STATE |
| Court | Texas Court of Criminal Appeals |
Harris E. Lofthus, Amarillo, for appellant.
Thomas C. Braly, Dist. Atty., Pampa, for the State.
DAVIDSON, Commissioner.
It now appears by satisfactory evidence that the statement of facts in this case was filed in the trial court within the time prescribed and that the date of filing as it originally appeared thereon was, in fact, incorrect.
The conclusion is reached that the statement of facts is properly before us for consideration.
Accordingly, appellant's motion for rehearing is granted and the judgment of affirmance is set aside, and the case will now be considered on its merits.
Denison, the person to whom it was alleged appellant attempted to pass the forged check, was an employee in the grocery store of his mother and father. He testified that appellant presented to and asked him to cash a $50 check bearing the signature of J. D. Jud Johnson. Upon suggestion of his mother, he refused to cash the check. The check was returned to appellant, who left the store and was seen to go into a hotel.
The sheriff was notified by Denison that 'there was a man trying to get a check on Jud Johnson cashed.' After receiving from Denison a description of appellant and learning where he might be found, the sheriff went to the hotel and found that appellant had registered there and had been assigned to room No. 9. The sheriff, in the absence of the appellant, entered the room and found no one. Later, accompanied by Denison, he returned to the hotel room and a search thereof revealed appellant hiding under the bed. In the commode were found some scraps of paper which were pieced and taped together, forming the check which Denison identified as the one presented to him by the appellant. The sheriff had no search warrant authorizing the search of the room, nor did he have a warrant of arrest for the appellant.
Johnson, whose name was alleged to have been signed to the check, testified that the signature was a forgery and that he had given no one permission to sign his name thereto.
It is upon the facts stated that this conviction rests.
Appellant presents two questions for review: (a) the insufficiency of the evidence to support the conviction, and (b) the illegal search of his room.
Three elements are necessary to constitute the offense of attempting to pass a forged instrument, Art. 996, Vernon's Ann.P.C. These are: (a) the attempt to pass the instrument as true, (b) the fact that the instrument was a forgery, and (c) knowledge by the accused that the instrument was forged or a forgery when he attempted to pass it. Montgomery v. State, Tex.Cr.App., 246 S.W.2d 209.
The proof abundantly establishes the first two of those elements. The remaining question, then, has reference to proof of the knowledge that the check was a forgery.
The state made no effort to show that the appellant wrote the check or that same was in his handwriting. The name signed to the check was not that of a fictitious person but, rather, of a person well known. If knowledge on the part of appellant that the check was a forgery be shown, it is by reason of the attendant circumstances. Roach v. State, 138 Tex.Cr.R. 382, 136 S.W.2d 614.
The conclusion is expressed that the evidence showing the check was payable to the appellant and also the evidence showing the attempted destruction thereof after the unsuccessful attempt to pass it constitute sufficient circumstances to warrant the jury's conclusion that appellant knew the check was a forgery when he attempted to pass it.
From what has been said, the admissibility of the testimony touching the finding of the scraps of paper which constituted the forged check is a matter of material importance to the appellant.
In so far as the right to search it is concerned, the hotel room occupied by appellant constituted, under the circumstances here presented, his place of abode, within the meaning of the Constitution, Art. 1, Sec. 9, Vernon's Ann.St. and laws, Art. 4 C.C.P. prohibiting unreasonable searches and seizures. Giles v. State, 133 Tex.Cr.R. 454, 112 S.W.2d 473.
For the testimony as to appellant's arrest and as to the search of his room to be admissible, the sheriff was required to be lawfully upon the premises. If he was not, then the testimony was not admissible. For such entry and search to be authorized, then, the sheriff was required to have a search warrant or the right to arrest appellant without a warrant of arrest.
No search warrant or warrant of arrest was shown or relied upon.
It would serve no useful purpose to discuss the various statutes under Title 5, C.C.P., and situations arising thereunder, that...
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United States v. Hall, TY-78-28-CR.
...such peace officer may, without warrant, pursue and arrest the accused. See also Tarwater v. State, 160 Tex.Cr.R. 59, 265 S.W.2d 83, 267 S.W.2d 410 (1954). Particularly when entering a house to arrest a suspect, law enforcement officers are required by Texas law to obtain a warrant. See Tar......
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