Watson v. State

• Decision Date: 21 November 1917
• Docket Number: (No. 4622.)
• Citation: 199 S.W. 1113
• Parties: WATSON et al. v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W. 1113

WATSON et al. v.STATE.

(No. 4622.)

Court of Criminal Appeals of Texas.

November 21, 1917.

On Motion for Rehearing, January 16, 1918.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

J. E. and W. R. Watson were convicted of forgery, and appeal.Judgment affirmed as to defendant first named, and reversed and remanded as to the other.

Boyd & Bell and Geppert & Wroe, all of Teague, for appellant.E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellants were jointly indicted, tried, and convicted of forgery.The instrument which they were charged with forging was a note for $151.25, dated Teague, Tex., August 20, 1916, payable to the Farmers' & Merchants' State Bank or order at Teague, Tex., signed "G. F. Stilwell."The note was on one of the printed forms of the Farmers' & Merchants' State Bank of Teague.G. S. Stillwell testified that he had been a customer of the bank, but had ceased to do business with it about 90 days before it was taken over by the state department.He further said that he did not sign the note nor authorize any one to sign the note for him.He said he did know who signed it; the signature did not look like his, and he had never been requested to pay it.

A witness named John Bagett testified to his acquaintance with appellants, and that they were connected with the bank mentioned, and that he had worked for them five years prior to June, 1916; that J. E. Watson was active vice president, and W. R. Watson was cashier.He testified that he was familiar with their handwriting, and said:

"I think J. E. Watson wrote the body of this note, and the figures seem to be in his handwriting, the serial number."

He said the handwriting on the note resembled J. E. Watson's handwriting; that he was not positive who wrote it, but that it was shaded like J. E. Watson wrote, and that was about all that resembled his handwriting; that the note had no revenue stamp on it; and that he thought that all notes that were used as assets of the bank had revenue stamps on them.

Another witness, Chancelor, testified that he had worked in the bank, knew appellants, and was familiar with their handwriting, and that J. E. Watson wrote the "$151.25 and the 8/20," and it looked like he wrote the name of "G. S. Stillwell"; that all the writing on the note was written by the same party; that all the Watsons made loans and took notes for the bank when he worked there in 1911.Cross-examined, he stated:

"Yes, sir, I think J. E. Watson wrote the note but I didn't see him do it;" that the note had been shown him before; that he had formed the opinion that J. E. Watson wrote it; that that was his opinion when he took the stand.

He said:

"I am not uncertain about who wrote the name `Stilwell,' but we will all hesitate.I did not have an opinion as to who wrote the note before I saw it."

J. D. Moore testified that he was appointed receiver of the Farmers' & Merchants' Bank of Teague on the 29th of August, 1916, and that the note in question, and several other notes mentioned by him, were turned over to him as such receiver; that the notes mentioned, including the one in question, when turned over to him, were listed separately from the other assets of the bank, and that, taking these notes into consideration, there were more assets than necessary to balance the books.Other witnesses testified that the Stillwell note, the one in question, was among the assets of the bank, and Bank Examiner McKinnon testified that he had examined the bank on various occasions, and that the appellants had assisted him in going over the assets when he requested them to do so; that he had talked to them all with reference to the notes; that he examined the bank in May, 1916, and that he had discussed with them various notes, including some of the notes described in the list which Receiver Moore identified; that he was not certain that he talked to W. R. Watson about these particular notes.Another witness testified that he was present when McKinnon went over the notes described by him with appellant, J. E. Watson.Several witnesses were introduced who testified that the notes mentioned by Moore, receiver, as in the list and which purported to bear the signature of the witnesses were never signed by them or under their authority.These witnesses declared that they had not been called upon to pay them.Several witnesses for the defendants testified that they were acquainted with the signatures of J. E. and W. R. Watson, and that in their opinion the signature to the Stillwell note was not written by either of them.They gave it as their opinion that part of the body of the note was written by J. E. Watson.There was some testimony that there was a package of notes kept on J. E. Watson's desk which were not used in balancing the books of the bank, and to the fact that the notes that were used for that purpose bore revenue stamps, and that the Stillwell note was without revenue stamp.

Appellant presents three bills of exceptions: First, relating to alleged misconduct of the jury; second, with reference to refusal to instruct a verdict for W. R. Watson; and the third, omitting the formal parts, is as follows:

"Be it remembered that upon the trial of the above entitled and numbered cause, after the state had rested, the defendants, J. E. and W. R. Watson, filed and presented to the court the following motion: `Now come J. E. and W. R. Watson, defendants herein, and move the court to exclude all the testimony introduced with reference to alleged collateral forgeries, because there has been no evidence introduced showing that either one of these defendants participated or was connected in any way with said alleged forgeries.'* * * The court, after considering the above motion, overruled same, and that the said defendants, J. E. and W. R. Watson, then and there excepted in open court, and now tenders this bill of exception, and asks that the same be signed and filed as a part of the record in this cause.[Signed by attorneys for defendants.]"

This bill of exception is quite meager.It fails to set out the evidence which it complains of the failure of the court to exclude or to identify with certainty or show the connecting circumstances rendering it inadmissible.Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 750, 66 Am. St. Rep. 808;Phillips v. State, 50 S. W. 378;Kyle v. State, 53 S. W. 846;C. C. P. art. 744;Vernon's Crim. Stats. vol. 2, p. 542, note 29, and cases cited.

We infer that the other forgeries mentioned in the bill relate to the various notes that were described in the testimony of Moore, the receiver of the bank, as having been listed and turned over to him, and those described by the witness McKinnon as having been discussed by him with the appellants in his examination of the affairs of the bank.Speaking of this discussion, he said:

"We had all the notes of the bank up there and we discussed them; had them up one by one."

And in this connection he identified from recollection a number of the notes described in the list referred to by witness Moore with reference to which notes the purported makers gave testimony to the effect that they were not executed by them or by their authority.This testimony was properly limited in the court's charge, and if the question was properly raised, we cannot say that there was error in its admission.There was evidence from which the jury was authorized to form the conclusion that the various instruments mentioned were in possession of the defendants in connection with the note upon which the prosecution was founded, and that they were all put to a common use, namely, to swell the apparent assets of the bank of which the appellants were the active officers.Ham v. State, 4 Tex. App. 645;Mason v. State, 31 Tex. Cr. R. 307, 20 S. W. 564;Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 751, 66 Am. St. Rep. 808;Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; and other cases cited in Branch's Ann. P. C.p. 864, § 1412.

There were allegations asserting there were comments upon defendants' failure to testify; that there was separation of the jury; that one of the jurors did not agree to the verdict; that there was evidence considered with reference to the character of appellants, not introduced on the trial.Three supporting affidavits were attached to the motion, one made by juror R. H. Red, one by juror Pyrtle Blount, and one by Eubanks, the officer in charge of the jury.Evidence was heard upon the motion, each of the 12 jurors and the officer mentioned testifying.The evidence relied on to show separation was the fact that the jurors occupied two rooms apparently in the courthouse, both of which were used for sleeping rooms, part of the jury sleeping in one, and part in the other, which rooms seem to have been across the hall from each other, and doors connecting them being open, and the jurors throughout their deliberations used the entire apartment.Also upon the fact that after the verdict had been agreed upon, written, and signed, and Eubank, the officer in charge, requested to advise the judge, and while they were waiting for the judge to come to the courthouse, one of the jurors, Red, assuming that the transaction was complete, went down the stairway and encountered the officer, Eubank, remarking in effect, "We have played hell; we have written a verdict;" that the officer directed the juror to rejoin the others, which he did without contact or conversation with any other person or without any further conversation with the officer.The separation of a jury after it is impaneled and sworn to try a felony case is prohibited by statute(article 745, C. C. P.).Passing upon circumstances similar to those detailed, it has frequently been held by this court that a reversal would not result where it was shown affirmatively that there was no influence brought to bear upon the jury in consequence of the circumstance and no opportunity...