Cox v. State

368 S.W.2d 600, 1963 Tex. Crim. App. LEXIS 919

• Court: Court of Criminal Appeals of Texas
• Decided: April 3, 1963
• Docket: 35584
• Status: Published

Opinions

WOODLEY, Presiding Judge.

The offense is passing a forged instrument in writing; the punishment, 4 years.

The office of Dr. A. F. Hopkins, D.V.M. at the Skillman Animal Clinic, was burglarized and a series of personalized blank checks numbered 1813 through 1854 were stolen.

The operator’s license of Wenona B. Martin was stolen from her purse.

Check No. 1827 of the series of checks was filled in so as to make it a check payable to Wenona B. Martin for salary in the sum of $93.86, bearing the signature “Dr. A. F. Hopkins” under the printed name “Skillman Animal Clinic”.

The state introduced evidence showing that the appellant, wearing a nurse’s uniform, passed this check No. 1827 to Shirley Stubbs, an employee at a Safeway Store in Dallas, identifying herself by the stolen operator’s license as Wenona B. Martin, the name of the payee and endorser of the check, and received from Shirley Stubbs $93.86 in money.

Proof was made that Dr. Hopkins did not sign the check or authorize anyone to sign it, and that it was not paid when presented to the bank on which it was drawn.

The appellant, testifying in her own behalf, denied that she cashed the check or forged it.

The state offered for the purpose of proving intent to defraud check No. 1836 of the series of stolen checks, and introduced evidence showing that it had been filled in and forged in the same manner as check No. 1827, and cashed in the same manner at the A & P Food Store on Skillman, in Dallas, by the appellant. She denied having filled out, signed or passed this check.

Check No. 1835 of the series was filled in and forged in the identical manner. The evidence shows that appellant presented this check to Betty Jean Berry, cashier at Colbert’s Department Store, and asked her if she could cash her payroll check. The cashier declined to take the check, but offered to take the appellant’s personal check for the amount of the merchandise she had selected, and the appellant signed the name “Wenona B. Martin” to a bank-draft in the sum of $16.30, identifying herself as before by Wenona B. Martin’s operator’s license.

The appellant denied that she attempted to pass check No. 1835 or that she was the person who was in Colbert’s or who signed and passed the bankdraft.

Check No. 1835 was also presented to Mrs. Beavers at Margo’s LaMode Store about closing time. Dr. Hopkins was contacted by telephone, police were called and the appellant was taken into custody.

The appellant admitted having attempted to cash this check at Margo’s but testified that it was given to her by Tina Bridges who had endorsed it and asked her to cash it for her. Her testimony was that this was the only one of the checks she had attempted to pass, and that she did not pass “any check whatever”, and that so far as she knew the check she attempted to pass was good.

By informal bill of exception complaint is made regarding other checks of the series of stolen checks which were exhibited to the appellant upon her cross-examination, and about which she was examined and denied any knowledge of them or of their number.

These other checks were admissible in evidence had they been properly identified. However, they were admitted over objection that a proper foundation had not been laid for their introduction (without having been identified), and the appellant was requested to read the numbers thereon, and she did so.

Before the examination proceeded further appellant’s counsel’s motion to exclude the checks from evidence was sustained and the jury was instructed to disregard the testimony “with regard to these checks”.

There was already evidence before the jury as to the serial numbers of the checks stolen from the doctor’s office, and the jury received no further information in regard to them. We see no error which would warrant reversal.

In rebuttal the state called Fred Wayne McKell who testified that he drove the appellant to different shopping centers and she would take a check into the store and come out with money; that the checks were similar to the check described in the indictment and that the money was divided between Bobby Davis, the appellant and him, he receiving around $200. The appellant denied that she was riding with McKell.

The jury rejected appellant’s claim of duress.

The remaining claims for reversal relate to the court’s charge.

The complaints to the charge are not before us for consideration.

The record contains what purports to be “Exceptions and Objections to the Court’s charge.” It is apparent that the objections were presented orally and later reduced to writing and filed. The opening paragraph reads:

“Now comes the defendant and takes her exceptions to the Court’s charge prior to the time the charge has been read to the jury and with the understanding that it may he reduced to writing and filed as of this time.”

The objections are signed by counsel who did not represent the defendant at the trial, but is her counsel on appeal.

The trial court’s certification reads: “The above and foregoing objections and exceptions to the Court’s charge are considered filed as of the time prior to the charge being presented to the jury.”

The state challenges the consideration of the complaints to the charge of the court and directs attention to Art. 658 Vernon’s Ann.C.C.P. requiring that objections to the charge be presented in writing before the charge is read to the jury, and to the holdings of this Court in Templeton v. State, 152 Tex.Cr.R. 121, 210 S.W.2d 168; Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267; and Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144.

The appellant argues that the record before us should be considered as showing that the objections and exceptions to the Court’s charge were filed on the date of the trial and that the trial court having acquiesced in allowing the objections to be dictated to the court reporter for later transcription, we should consider her objections.

We re-affirm our recommendations that the procedure set out in the statutes be strictly complied with.

We need not rest our holding that the complaints to the court’s charge are not before us on the fact that the objections were not in writing.

It is well settled that in order to complain of the overruling of objections to the court’s charge the record must show the court’s ruling on the objections and that exception to such ruling was reserved. Medlock v. State, Tex.Cr.App., 356 S.W.2d 312, and cases cited.

The only action the trial court is shown to have taken on appellant’s objections to the charge was his certification that the objections were to be considered filed before the charge was read to the jury. The appellant had no reason to except to this ruling and he did not.

The court’s certification was not a ruling on the objections. If so, there is no showing that the appellant reserved an exception to such ruling.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.