Taylor v. State

• Decision Date: 31 October 1906
• Citation: 97 S.W. 474
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

97 S.W. 474

TAYLOR v. STATE.

Court of Criminal Appeals of Texas.

October 31, 1906.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

B. E. Taylor was convicted of passing a forged instrument, and appeals. Reversed and remanded.

Newton & Ward and P. H. Swearinger, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is the second appeal from a conviction of passing a forged instrument.

There are a great many very interesting questions suggested for revision, but from a review of the record, these may be condensed into a few leading propositions. During the trial the state was permitted to introduce subpœnas issued to different counties for witnesses. Various objections are urged to the introduction of this testimony. The theory of the state was that appellant either forged or passed as true the instrument alleged in the indictment when he had knowledge of its forgery. There were also other alleged forgeries, growing out of the same transaction, used as evidence against the accused. The subpœnas contained with others the names of the parties whose names are said to have been signed to the forged instrument. The return on the subpœnas were also introduced in evidence showing that the parties could not be found in the counties to which said subpœnas were sent. This character of evidence, under the circumstances of this case, was not admissible against accused. Had the question arisen upon diligence to secure the attendance of these witnesses on a contest made by the state to avoid a successful result of an application for continuance, perhaps this would have been legitimate before the court. It was not evidence to go before the jury to prove the fact or tend to prove the fact that the parties whose names are said to have been forged were fictitious persons. It was totally irrelevant and immaterial, and fully prejudicial. Felsenthal v. State, 30 Tex. App. 675, 18 S. W. 644; Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925; Shamburger v. State, 24 Tex. Cr. 433, 6 S. W. 540; Long v. State, 17 Tex. App. 128. We are of opinion that the cases of Felsenthal and Attaway are conclusive of the question. In Shamburger's Case, a change of venue had occurred at the instigation of appellant upon both grounds of the statute. In the county to which the venue was changed upon the trial the motion and the adjudication of this question, as shown by the record from that county to the county to which the venue was changed, was introduced before the jury. It was held that this testimony was not only inadmissible, but injurious.

One of the most serious questions arising on the trial of this case was whether or not Wm. and Charles Arntz and Chas. Rogers, signers of the different alleged forgeries, were real or fictitious persons. The introduction of these subpœnas, with the return of the sheriff, to the effect that no such persons lived in or could be found in the counties to which the process was issued, bore upon this question, and evidently was intended to convince the jury that they were fictitious persons.

Bills of exception were reserved to the introduction of some letters, purporting to have been signed by appellant. The court qualifies the bills by stating, that they were received in the regular course of the mail. This was not sufficient to admit the letters. If the contents of the letters were relevant, before they were introduceable, it must be shown that appellant signed the letters or authorized his name to be signed to them. The mere fact that they were received in due course of mail, is not a sufficient predicate for their introduction. Law of Evidence by Burr W. Jones, § 599. The text laid down by Mr. Jones is: "Before letters are received in evidence, there must be,...