Williams v. State, 16698.

• Decision Date: 21 February 1934
• Docket Number: No. 16698.,16698.
• Citation: 68 S.W.2d 501
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

68 S.W.2d 501

WILLIAMS v. STATE.

No. 16698.

Court of Criminal Appeals of Texas.

February 21, 1934.

Commissioners' Decision.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

C. R. Williams was convicted of knowingly passing a forged instrument, and he appeals.

Reversed and remanded.

See, also, 67 S.W.(2d) 865.

Thomas B. Ridgell, of Breckenridge, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of knowingly passing a forged instrument, and his punishment assessed at confinement in the state penitentiary for a term of three years.

The testimony adduced upon the trial is in substance as follows: On the afternoon of the 26th day of December, 1928, the appellant and a man by the name of Self appeared at the Robert E. Lee garage in the city of Laredo, Tex., and purchased a tire at the price of $12, for which they paid with an American Express Company Travelers' check issued to H. H. Luckett in the sum of $50. The appellant received in change $38 in cash. In order to make the check negotiable, it had to be countersigned by H. H. Luckett. E. D. Lestergetty and John Moriarty, who owned and operated the Robert E. Lee garage, testified that they saw the appellant countersign said check with the name of H. H. Luckett at the time that he passed it to the Robert E. Lee garage. The testimony further shows that the appellant, Self, and Luckett stayed at the Robert E. Lee hotel in the city of Laredo about the 26th day of December, 1928. The appellant relied upon a plea of alibi which he supported by a number of witnesses from Amarillo and also by some written documents purporting to have been executed by the appellant at Amarillo on the 24th day of December, 1928.

The appellant complains of the action of the trial court in overruling his motion to quash the indictment. We have examined the indictment and deem it sufficient to charge the offense of knowingly passing a forged instrument.

Bills of exception 1, 2, and 3 do not disclose the alleged objectionable testimony, and, in the absence of such a showing, we are unable to determine the merits of said bills.

By bill of exception No. 4 the appellant complains of the action of the trial court in permitting the state to introduce as evidence a judgment nisi upon a forfeiture of a bail bond of defendant at a former term of said court. This bill of exception appears to have been taken on a habeas corpus hearing and not upon the trial of this case. The bill is evidently incorporated in this record through an error and therefore will not be considered.

By bills of exception Nos. 7 and 5 the appellant complains of the action of the trial court in admitting conversations between the witnesses George Lestergetty and Bismark Pope, in the absence of the defendant, in which conversations Pope urged the witness to help them out in the case as they had been good friends, to which the witness replied, "Bismark, I know that is the man and I cannot do that," to which appellant objected because it would not be binding upon the appellant and was incompetent and prejudicial. We believe that the appellant's position is well taken. Any statement made or any act done by the appellant's attorney could not be binding on appellant or charged against him unless it was shown that the appellant authorized the same to be made. See Luttrell v. State, 40 Tex. Cr. R. 658, 51 S. W. 930, 931, in which Judge Henderson made the following observation: "In the absence of some testimony or statement in the bill of exception showing some authority on the part of defendant's counsel to bribe a witness, it cannot be presumed that such authority was given. However beneficial the absence of a witness may be to a defendant in any given case, in the absence of some proof of authority, any attempt on the part of counsel to get rid of a witness must be attributed as of his own motion; yet it cannot be gain-said that such testimony coming before a jury must necessarily be fraught with injury to an appellant on trial. In the absence of proof of authority, the jury would nevertheless be apt to believe that the lawyer did not act on his own responsibility, but that there must have been some suggestion from the defendant, and so, without proof, visit upon the defendant the sin of his counsel."

By bill of exception No. 6 the appellant complains of the action of the trial court in permitting the state to prove by the witness J. D. Bell that he, the witness, was a special agent for the American Express Company; that he paid to Mr. H. H. Luckett the amount of the alleged forged check as well as eight others amounting to $400 and the express company reimbursed the said witness, to which testimony the appellant objected because it was an attempt to prove other offenses which was improper and prejudicial because the defendant had not testified in the case. We believe that the appellant's contention is well taken and should be sustained. Proof of other offenses is admissible only to discredit the defendant when he becomes a witness in his own behalf or when it is a part of the res gestae or when it tends to show intent, when intent is an issue, or when it tends to connect the defendant with the offense for which he is on trial, and in support of our views we refer to the following authorities: Bink v. State, 48 Tex. Cr. R. 598, 89 S. W. 1075; Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Clark v. State, 59 Tex....