Warren v. State

• Decision Date: 13 March 1912
• Citation: 149 S.W. 130
• Parties: WARREN v. STATE.
• Court: Texas Court of Criminal Appeals

149 S.W. 130

WARREN v. STATE.

Court of Criminal Appeals of Texas.

March 13, 1912.

On Motion for Rehearing, June 26, 1912.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Ollie Warren was convicted of crime, and he appeals. Affirmed.

Goodson & Goodson, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted as an accomplice to forgery, convicted, and his penalty fixed at three years in the penitentiary. The indictment charges that on or about December 10, 1910, one Dona Saulter forged her father's (D. T. Hurley's) name to a check on the Hamilton Bank & Trust Company for $23, and in proper language further that, before this forgery, appellant advised, commanded, and encouraged her to commit the forgery; he not being personally present when the forgery was committed. The state introduced the forger, Dona Saulter, who testified fully, and, so far as her testimony could do so, made out the offense completely against the appellant. It is unnecessary to give her evidence in detail. We will give only such a statement of it as to aid in making clear the points raised and decided.

The evidence shows that Dona Saulter was a young girl about 19 years old when the offense is charged to have been committed; that she lived with her father in the country in Comanche county near the town of Gustine; that, in the latter part of the summer and fall of that year 1910, the appellant was running a tailor shop at said little town of Gustine, cleaning and pressing. Some two or three weeks before this forgery he sold out his business at Gustine, stating that he was going elsewhere and locate in the same business. Dona Saulter's father's name was D. T. Hurley. She was married to Perry Saulter October 30, 1910, but lived with him a very short time then separated from him. Appellant went with her off and on all along during the summer and fall of 1910, and until certain blank checks were taken by her out of the back of her father's checkbook as hereinafter stated.

Dona Saulter, among other things, testified that somewhere from about the middle to the latter part of November, 1910, the appellant talked to her at her home. He asked her if her father had a checkbook, and, when she told him he did, appellant then told her to tear some checks, four or five, out of the back of the checkbook, make out the checks for small amounts so as to arouse no suspicion, make them payable to herself and sign her father's name thereto; that he explained to her that the purpose of this was that he did not have any money, and this was to raise money so that he and she could leave there together; that they intended to leave there whether they got the money on these checks or not; that upon his advice and at his request she went into her mother's trunk, got her father's checkbook out and tore out of the back five blank checks; that soon afterwards, or about that time, she went from her father's home near Gustine to Comanche in Comanche county to one of her married sisters' homes, she having two there at that time, and took these blank checks in her suit case with her; that she had an understanding with appellant that he would come up to Comanche after she got the checks, which he did. That she went to Comanche on Wednesday before she forged the checks on the following Saturday. Before going to Comanche, she had an understanding with appellant that he would come on the following Monday; that instead he came on Friday after she went there on Wednesday and phoned her about noon on Friday that he was there, made an engagement with her for her to come down in town and meet him at Cunningham's store that evening. It seems that her sister, where she was stopping, lived out in the edge of the town of Comanche; that on that Friday evening, in accordance with her agreement with appellant, she met him at Cunningham's store in Comanche, had some little talk with him, but not about the details of her forging the checks; that they separated, after making an agreement to meet elsewhere in the edge of the town which they did, where he met her with a buggy and took her out about a mile to a private place in the country; that they then and there talked the details of the forgery over and how to get the money thereon. It seems they had two or three such conferences in which he instructed her to draw the checks as he had before told her in small amounts, ranging from about $25 down to $10, sign her father's name to them, payable to herself, and make some of the checks for some odd cents as well as for dollars. His statement to her at the time for doing this was that nobody would then suspicion anything. He then detailed to her to what stores to take the checks and how to negotiate them, to buy a small bill of goods at each place, tender the check in payment, and get the balance in money, and as soon as she got the money and the goods to take them and meet him at a certain place; that, while she was negotiating these checks and getting the goods and money thereon, he would be around in the town where he could watch after her, and, if she got into any trouble, he would come to her relief. She says he did stay around in the town, and while he was not with her, nor where she was that in going from store to store when she negotiated the checks and got the money and goods, she saw him on or across the street from her a few times. That, after all the preliminaries were arranged by her, she went back to her sister's and stayed Friday night; that on Saturday morning December 10, 1910, while she was alone at her sister's, she filled out the five blank checks, all payable to herself, and signed her father's name thereto. One of the checks was for $23, another for $17.40, another for $10, another for $15, and the other for $25.50. She also testified that, in the conferences with her while he was instructing her how to draw the checks and to whom and when to negotiate them, she was to take them to the respective stores as he had instructed her to do in Comanche late Saturday evening after the banks had all closed; that she carried out in detail all that he had instructed and directed that she should do; that Saturday evening she took these respective checks, went into the said respective stores, bought small bills of goods, tendered the checks in payment, got the balance in cash; that she did this right straight along, it taking about 30 minutes from the time she went into the first until she had concluded with the fifth of the stores; that she at once gathered up the goods she had thus procured, met him where he was with the buggy as agreed; that he took the goods from her, put them in the buggy, she and he then got in and drove off to the country. What became of the goods thereafter is not stated. He took charge of the goods, however, so that she would not have to take them to her sister's and raise the suspicion of her sister by having, at one time, so much goods; that she gave to him not only the goods, but $20 of the money she had thus received. That it was also agreed between them that she was to leave there that night on the train and go to Baird in Callahan county; that she went to the depot of the railroad that ran through Comanche that night some time before the train was due; that appellant, at her instance, while at the depot procured and sent to her by Sid Arthur, another of their confederates, whom she testified was also present at these interviews where it was arranged she should forge and negotiate said checks and procure the money and goods thereon, and while at the depot this confederate, Sid Arthur, brought her the lunch that appellant had procured; that she left that night and went to Baird where appellant followed in a few days, and that they stayed there together a few days and then went from there to first one town and then another, staying together for several days, when they separated, he leaving her; that they did not meet afterwards, but she returned to Comanche some days after the forgery and negotiation of the checks; that he was not arrested until some time later. She also testified that she signed and negotiated each of said checks without the knowledge or authority of her father. Her father testified that he did not sign any of the checks and that he did not authorize her to sign or negotiate any of them for him.

By appellant's bill of exceptions No. 1, he shows that, while the state was introducing its evidence before the jury, it placed on the stand as witnesses Harry Slack, Sam Wilkerson, Harry Brin, Minnie Anthony, Ellen Moore, and Jess Hughes, and propounded to each of them questions, intending to elicit and which did elicit from said witnesses, respectively, that during the day of Saturday, December 10, 1910, and in the afternoon of that day, Dona Saulter appeared in the respective storehouses where they were employed and presented to and had cashed, partly in merchandise and the balance in cash, the five checks introduced in evidence, including the one on which the indictment is based, the other four set out and described in the statement of facts, presenting one and having the same so cashed at the store of the Comanche Mercantile Company, another at Catter & Co.'s, another at Brin & Co.'s, another at Higginbotham Bros. & Co.'s, and another at Neely Harris Cunningham Co.'s; that, at the time the questions were asked which drew out this testimony, he objected, because the testimony is irrelevant, immaterial, not proper to corroborate Dona Saulter, and which could only corroborate her, not as to the offense with which the appellant was charged, but alone as to the offense committed by her in passing said forged instruments which could not be received for that purpose as to the offense charged against appellant, and because the passing of said forged instruments by Dona Saulter was a separate and distinct offense from the forgery of the instrument; that the...