Baker v. State

Court of Criminal Appeals of Texas

Baker v. State

5 S.W.2d 149, 109 Tex. Crim. 433, 1928 Tex. Crim. App. LEXIS 290

CourtCourt of Criminal Appeals of Texas

DecidedApril 11, 1928

DocketNo. 11510.

StatusPublished

Cited by1 cases

This text of 5 S.W.2d 149 (Baker v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baker v. State, 5 S.W.2d 149, 109 Tex. Crim. 433, 1928 Tex. Crim. App. LEXIS 290 (Tex. 1928).

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Opinion

LATTIMORE, Judge.

Conviction for passing a forged instrument, punishment two years in the penitentiary.

Appellant admitted passing the instrument described in the indictment. He claimed same was given to him by one Wilson, *434 a man whom he had known about fifteen years, and thought to be a straight, honest man. He testified that he met Wilson in the town of Best, in Reagan County, and Wilson said he was broke and asked appellant how much money he had and if he could cash a check for him, and appellant said upon his agreeing' to do so Wilson wrote out a check and handed it to him and he gave Wilson. the money. He further testified that he. put the check in his pocket and came back to San Angelo and went to the garage where he passed the check, and then for the -first time observed that the name of V. I. Pierce was signed to said check. He said that Wilson had told him at the time he gave him the check that he was. working for Pierce, and that believing the check was good he endorsed it and passed it to Mr. Hair. The above represents the affirmative theory as made by the testimony of appellant. In this condition of the record the court was asked to give a special charge, in effect, that .if the jury found that defendant believed at the time he cashed the' check that Wilson had authority to sign said check and sign the name of Pierce thereto, or if they had a reasonable doubt thereof, they sho.uld find the defendant not guilty. This charge was refused. We find nothing in the charge given by the court presenting this defense made by the appellant’s testimony. In our opinion the accused was entitled to have some such affirmative presentation of his defense. The fact that it was not supported by any other testimony than his own, would not justify the assumption that his statement was untrue or that the jury would not believe it, and that hence such theory need not be submitted. That the accused is entitled to a presentation of his affirmative defense, if he has one, seems the uniform holding of the authorities. Medford v. State, 86 Tex. Crim. Rep. 237; McCormick v. State, 86 Tex. Crim. Rep. 366; Thurogood v. State, 87 Tex. Crim. Rep. 209; Escobedo v. State, 88 Tex. Crim. Rep. 277; Horn v. State, 89 Tex. Crim. Rep. 220; Smith v. State, 89 Tex. Crim. Rep. 606.

A banker testified that in his judgment the signature of appellant in the endorsement upon the check, and the handwriting of the body of the check appeared to be different and seemed to have been written by different persons. The existence of such a person as Wilson was shown by other testimony than that of the defendant. While the jury -may not have believed the truth of appellant’s testimony supporting the defensive theory, this was a matter for them to pass upon> and not the court.

*435 Believing the trial judge erred in refusing to give the charge requested, or one presenting the defensive issue, and that such error was of serious import, the judgment will be reversed and the cause remanded.

Reversed and remanded.

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LATTIMORE, Judge.

Conviction for passing a forged instrument, punishment two years in the penitentiary.

Appellant admitted passing the instrument described in the indictment. He claimed same was given to him by one Wilson, *434 a man whom he had known about fifteen years, and thought to be a straight, honest man. He testified that he met Wilson in the town of Best, in Reagan County, and Wilson said he was broke and asked appellant how much money he had and if he could cash a check for him, and appellant said upon his agreeing' to do so Wilson wrote out a check and handed it to him and he gave Wilson. the money. He further testified that he. put the check in his pocket and came back to San Angelo and went to the garage where he passed the check, and then for the -first time observed that the name of V. I. Pierce was signed to said check. He said that Wilson had told him at the time he gave him the check that he was. working for Pierce, and that believing the check was good he endorsed it and passed it to Mr. Hair. The above represents the affirmative theory as made by the testimony of appellant. In this condition of the record the court was asked to give a special charge, in effect, that .if the jury found that defendant believed at the time he cashed the' check that Wilson had authority to sign said check and sign the name of Pierce thereto, or if they had a reasonable doubt thereof, they sho.uld find the defendant not guilty. This charge was refused. We find nothing in the charge given by the court presenting this defense made by the appellant’s testimony. In our opinion the accused was entitled to have some such affirmative presentation of his defense. The fact that it was not supported by any other testimony than his own, would not justify the assumption that his statement was untrue or that the jury would not believe it, and that hence such theory need not be submitted. That the accused is entitled to a presentation of his affirmative defense, if he has one, seems the uniform holding of the authorities. Medford v. State, 86 Tex. Crim. Rep. 237; McCormick v. State, 86 Tex. Crim. Rep. 366; Thurogood v. State, 87 Tex. Crim. Rep. 209; Escobedo v. State, 88 Tex. Crim. Rep. 277; Horn v. State, 89 Tex. Crim. Rep. 220; Smith v. State, 89 Tex. Crim. Rep. 606.

A banker testified that in his judgment the signature of appellant in the endorsement upon the check, and the handwriting of the body of the check appeared to be different and seemed to have been written by different persons. The existence of such a person as Wilson was shown by other testimony than that of the defendant. While the jury -may not have believed the truth of appellant’s testimony supporting the defensive theory, this was a matter for them to pass upon> and not the court.

*435 Believing the trial judge erred in refusing to give the charge requested, or one presenting the defensive issue, and that such error was of serious import, the judgment will be reversed and the cause remanded.

Reversed and remanded.

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5 S.W.2d 149, 109 Tex. Crim. 433, 1928 Tex. Crim. App. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-state-texcrimapp-1928.

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