Ware v. State, 44267

• Decision Date: 14 December 1971
• Docket Number: No. 44267,44267
• Citation: 475 S.W.2d 282
• Parties: Joe Lee WARE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 282

475 S.W.2d 282

Joe Lee WARE, Appellant, v. The STATE of Texas, Appellee.

No. 44267.

Court of Criminal Appeals of Texas.

Dec. 14, 1971.

Rehearing Denied Feb. 9, 1972.

Milton E. Douglass, Jr., Wichita Falls, for appellant.

Jim Phagan, Dist. Atty., Jim Ahlstrand, Asst. Dist. Atty., Wichita Falls, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is attempting to pass a forged instrument; the punishment, four (4) years. The record reflects that the appellant entered the Village Grocery Store, 4047 Burkburnett Road, Wichita Falls, Texas, on January 3, 1970. He then presented a check, payable to Ronnie J. Anderson, signed 'Big John's,' which had been drawn on the First Wichita National Bank for $42.50, to Johnnie Thomas Morley, co-owner and manager of the store. He presented a Selective Service Card in the name Ronnie Joe Anderson and asked, in reference to the check, 'Can you handle this for me?' Mr. Morley responded he could handle the check if there was sufficient money in the bank to cover it. Morley then telephoned John McMillan, co-owner and manager of Big John's Liquor Store, to verify the check. McMillan told Morley that he knew of no check issued in the name of Ronnie J. Anderson and told Morley to detain appellant, that he would call the police department. Morley instructed appellant to wait for a return call from Big John's. Shortly thereafter, when appellant began to leave the store, Morley displayed a pistol from under the counter and told appellant to wait; appellant complied. An employee in the store then also telephoned police, who arrived shortly and took the appellant from the store.

In four separate grounds of error, appellant alleges the trial court erred in failing to grant his motions for instructed verdict and a new trial. Appellant first contends that the State failed to prove or offer any evidence to establish that the alleged offense was committed in Wichita County, Texas.

Morley testified that his store, where the check was attempted to be passed, was in Wichita County.

Appellant's first ground of error is overruled.

In his second ground of error appellant asserts that the evidence was not sufficient to show that the instrument in question was forged and that it was not shown that the instrument was not a valid negotiable obligation.

The evidence adduced at trial indicated that the check that appellant attempted to pass to Morley was one of several personalized checks belonging to the liquor store which were missing and unaccounted for. Further, the testimony revealed that the check in question bore neither the signature of John McMillan or his partner, Mr. M. W. Oliver, and that the signature 'Big John's' was not used in the course of their business. Further, there was some indication that the bank was not authorized to honor a check signed in such a manner. ¹ McMillan testified that a personalized check protector was used on all the liquor store's checks. The check in question had not been embossed or imprinted by the liquor store's check protector. At the time appellant attempted to pass the check, he presented a Selective Service Card belonging to Ronnie Joe Anderson for the purpose of identification. Anderson testified that his Selective Service Card had been stolen prior to the date of the instant offense, that he did not know appellant and that he had not given the card to the appellant. Further, McMillan testified that his records revealed no check had been issued to Ronnie J. Anderson. The evidence was sufficient to sustain the jury's finding that the instrument was forged. In testing the sufficiency of the evidence this Court ascertains only whether there is any evidence that, if believed, shows the guilt of the accused. Peterson v. State, 248 S.W.2d 130 (1952).

Appellant's second ground of error is overruled.

In his third ground of error appellant alleges that the State failed to prove that the defendant knew that the instrument in question was forged. The fact that appellant offered the forged check in question, made out in a name other than his own, is sufficient to warrant the jury's conclusion that he knew the check was a forgery when he attempted to pass it. Castanuela v. State, Tex.Cr.App., 435 S.W.2d 146 (1968); Hilton v. State, Tex.Cr.App., 443 S.W.2d 843, 844 (1969); Fifer v. State, Tex.Cr.App., 451 S.W.2d 757, 758 (1970).

Appellant's third ground of error is overruled.

Appellant's ground of error number four complains of the admission of testimony regarding the theft of Ronnie Anderson's Selective Service Card several weeks prior to the immediate offense. It is urged on appeal that this testimony related to an extraneous and uncharged offense and was so prejudicial that it necessitates reversal. The evidence was admissible and no error was shown. See Thomas v. State, Tex.Cr.App., 417 S.W.2d 398 (1967).

Appellant's fourth ground of error is overruled.

We next deal with appellant's alleged error number five wherein complaint is again made of failure of the trial court to sustain the defendant's motions for instructed verdict and new trial on the ground that it was not proved that the forged instrument was passed by the defendant. Article 996, Vernon's Ann.P.C., under which appellant was prosecuted proscribes not only the passing of a forged instrument as true, but also the attempted passing of such an instrument. It is not incumbent upon the State to prove acceptance of the forged instrument. ...