Francis v. State

7 Tex. Ct. App. 501

• Court: Court of Appeals of Texas
• Decided: July 1, 1880
• Status: Published

Opinion

Winkler, J.

The appellant was prosecuted in the District Court of Travis County under the act of July 28, 1876, entitled “An act to provide for the detection and conviction of all forgers of land-titles,” on an indictment which contains two counts. Several exceptions to the indictment were made by the defendant’s counsel, which were overruled by the court, and the defendant excepted. The judgment-entry recites that thereon ‘ both parties announced themselves ready for trial; and the indictment in this cause containing two separate counts, the State now elected to try the defendant on the count of forgery.”

The count in the indictment upon which the State elected to try and on which the trial was had charges “ that D. H. Francis, in the county of Robertson, in the State of Texas, on the 20th day of April, in the year of our Lord eighteen hundred and seventy-seven, wilfully, feloniously, without lawful authority, and with the intent to defraud, did make and forge a certain false and forged instrument in writing, purporting to be the act of another person, to wit, the act df one William Smith, and which false and forged instrument in writing did then and there relate to .and affect an interest in land in the State of Texas, and which said false and forged instrument in writing was by the said Francis then and there falsely made in such manner that said false and forged instrument in writing would, if the same were true and genuine, have affected and trans'ferred certain property, to wit, a certain valid land-certificate ,or warrant numbered 55, issued to John Todd by Clement R. Johns, comptroller of public accounts of the State of Texas, for six hundred and forty acres of land in the State of. Texas, and which.fals'e and forged instrument in writing purports to be a conveyance and transfer of the land-certificate or warrant aforesaid'from the said William Smith to one E. W. Bell, and purports to bear date on the 20th day of April, a. d. 1877, and is in the words and figures following, to wit: ” — and here follows the instrument on which the forgery is assigned. This count has the proper commencement and conclusion.

Of the several exceptions taken to the indictment, and which were overruled, the first three take the position, virtually, that the grand jury of Travis County had no lawful authority to indict the defendant, because'the indictment shows on its face that the offence charged was committed in Robertson County and that the defendant was a citizen of that county at the time he is charged with committing the offence. The fourth ground of exception is that the petit jury of Travis County and the District Court of that county have no authority to try the case, even if the grand jury may indict. The fifth exception is as follows : " Because the statute under which this indictment is found, and particularly sect. 5 thereof, is unconditional and void.” There is one other exception, which refers to the second count in the indictment; but as this count was abandoned by the prosecution, this exception need not be further noticed.

Besides these preliminary exceptions, two others were set out in a motion in arrest of judgment, the first of which asserts the proposition that sect. 5 of the act under which the prosecution was had is unconstitutional and void for the following reasons : 1. Because said section is not embraced in nor indicated by the title of the act; 2. Said sect. 5 is a special law; 3. Because it is contrary to the provisions of art. 1, sect. 19, of the Bill of Eights, and to sect. 10 of the- same article. The second is : Because " the testimony discloses that the defendant forged the instrument described in the indictment, if at all, in Waller County, and not in Robertson as charged in the indictment. The record does not disclose that the motion in arrest of judgment was ever acted on by the court. It is noticeable, however, that all the grounds of exception to the indictment, as well as those set out in the motion in arrest of judgment, are substantially set out in the defendant’s motion for a new trial, except perhaps such as question the constitutionality of the act under which the defendant was prosecuted.

It is hardly necessary or requisite now that we should enter into an elaborate investigation into the question as to the constitutionality of the act of July 28, 1876, as this particular subject was before this court and necessary to a decision in the case of Ham v. The State, 4 Texas Ct. App. 645, when on full argument and mature consideration it was held that the law in question was constitutional, and that sect. 5 of the act is germane to the title of the act, and is not a special or local law. In the opinion in Ham’s Case it was said by the present presiding judge of this court that “ so outrageous had become the wrongs inflicted upon our citizens by means of forged land-titles, that the framers of our last Constitution incorporated into that instrument the sixth section of art. 13, which provides that ‘ the Legislature shall pass stringent laws for the detection and conviction of all forgers of land-titles, and make such appropriations of money for that purpose as may be necessary.’ In obedience to this requirement the Fifteenth Legislature, the first which assembled under the new Constitution, on July 28, 1876, passed an act entitled 'An act to provide for the detection and conviction of all forgers of land-titles.’ ” Gen. Laws 1875, p. 59.

Sect. 5 of the act in question, to which we understand the objection in the present case applies, is in this language: “Persons out of the State may commit, and be liable to indictment and conviction for committing, any of the offences hereinafter enumerated which do not in their commission necessarily require a personal presence in this State, the object of this act being to reach and punish all persons offending against its provisions whether within or without the State; and indictments under this act may be presented by the grand jury of Travis County in this State, or in the county where the offence was committed, or in the county where the land lies about which the offences in this act were committed.” It is to the latter portion of this section, which provides that “ indictments under this act may be presented by the grand jury of Travis County,” as we understand, the objections here presented apply; it being contended on behalf of the appellant that the grand jury of Travis County had no right to indict, nor did the District Court and the petit jury of that county have lawful authority to try the accused on the indictment presented, it appearing on the face of the indictment that the forgery set out was committed in Robertson County.

It is conceded that the questions here raised to the constitutionality of the section of the act under consideration are not precisely identical with those raised in Ham’s Case; yet, inasmuch as the section has been held germane to the requirements of the Constitution, we must hold the particular portion complained of, which provides that indictments under this act may be presented by the grand jury of Travis County, necessarily carries with it the right of the District Court of Travis County, or of either of the two counties mentioned in the section, to try the person so indicted in that county, without reference to prior legislation on the subject of the venue of criminal trials. The question of variance is, under this act, wholly immaterial where it is averred or proved the offence was committed, if it affected land in Texas.

Counsel for the appellant have prepared the case for appeal with more than ordinary care; every ruling of the court complained of on the trial below is presented in the record by clear bills of exception, so as to leave no doubt or uncertainty as to the precise matter complained of. In the view we take of the case, it will not be necessary that the several matters set out in the bills of exception should be separately considered. We notice, as most important, some of the rulings of the court below on the evidence; and, secondly, the charge of the court.

1. The State introduced as a witness one J. Barry Strong, and after he had been sworn the defendant objected to his testimony ‘ ‘ because he stands indicted in this court for the forgery of the conveyance from John Todd to William Smith, and because the State proposes to take the testimony of said witness without first dismissing the said indictment against the witness, it being admitted that he was indicted therefor.” The objection was overruled, and the defendant ex-cejffed.

2. The State’s counsel offered in evidence the conveyance to the John Todd certificate, from William Smith to R. W. Bell, which was objected to on several grounds, viz.: because the State had not shown that the defendant wrote or signed the signature “William Smith” to said conveyance ; because it does not purport to have been signed by this defendant nor acknowledged by him ; because the body of the instrument is in the handwriting of another, and not that of the defendant; because there is an attesting witness to the genuineness of the signature of William Smith, who has not been called by the State to prove that the signature is a forgery ; and because the testimony of the defendant as to who made the acknowledgment had not been offered: These objections were overruled, and exceptions reserved; and the transfer was introduced and read to the jury over the objections.

3. The State, by attorney, offered in evidence the certificate of acknowledgment to the transfer from Smith to Bell, which was objected to by the defendant because the certificate of acknowledgment is no part of the instrument alleged to be forged; because the certificate of acknowledgment is collateral and irrelevant to the issue being tried; and because, to prove that the certificate of acknowledgment was á forgery, or that the defendant had personated another in making the certificate, does not prove that he forged the instrument to which the certificate is attached.

• In another bill of exceptions it is recited that after J. Barry Strong had sworn that he and the defendant forged the bonveyance to the Todd certificate purporting to be a conveyance from Todd to Smith, the prosecution offered in evidence the conveyance from John Todd to William Smith of the Todd certificate; to the admission of which the defendant objected on several grounds, viz.: because the signature of Todd is on,ly proved to have been written by the defendant by Strong, an accomplice; and because the testimony was irrelevant to the issue; and because it was not competent for the State to show another and different forgery than the one charged in the indictment, for the purpose" of showing scienter in this. The objection was overruled, and the evidence admitted: Other objections of similar character were taken to testimony introduced by the State.

It is true that the production of evidence is in general governed by certain fixed rules : first, that the evidence must correspond with the allegations, and be confined to the point in issue; second, the testimony is sufficient if the substance only of the issue be proved, etc. 1 Greenl. on Ev., sect. 50. But these general rules do not apply in every case; on the contrary, the authorities are abundant to the effect that there are many qualifications and exceptions to these general rules which are of as binding authority and which are based on as sound reason as the general rules themselves. One of these exceptions is that testimony is admissible if it tends to prove the issue; or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it. Nor is it necessary that its relevancy should appear at the time when it is offered; it being the usual course to receive, at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which counsel shows will be rendered material by other evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case. 1 Greenl. on Ev., sect. 51a.

Evidence going to show knowledge and intent of the party against whom it is offered, though apparently collateral and foreign to the main subject, may have a direct bearing, and thus become admissible. So, in an indictment for knowingly uttering a forged document or a counterfeit bank-note, proof of the possession or of the prior or subsequent utterance of other false documents or notes, though of a different description, is admitted as, material to the question of guilty knowledge or intent. Cases of this sort, therefore (says Mr. Greenleaf), instead of being exceptions to the rule, fall strictly within it. 1 Greenl. on Ev., sect. 53 and notes.

Mr. Wharton (1 Whart. Cr. Law, sect. 649), on the authority of quite a number of cases, lays down the following rule : “When the scienter or quo anima is requisite to and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding'they may constitute in law a distinct crime.” We are of opinion that under a proper application of these authorities (and they are not alone) the court did not err in any of its rulings in admitting the testimony set out in the record against the defendant. The testimony was, we are of opinion, properly admitted.

With reference to the charge of the court, the judge instructed the jury, among other things, as follows: “Our statute further provides that in case of forgery affecting the titles to lands in Texas, upon indictments in such cases it shall only be necessary to prove that the person charged took any one step or did any one act or thing in the commission of the offence, if from such step, act, or thing any intention to defraud may be reasonably inferred.” This charge was excepted to at the time of the trial, as shown by a bill of exceptions embodied in the transcript. We are of opinion that this charge of the court as set out above, whilst it is in the language of the statute, or nearly so, was defective in that it did not make any application of the law to the facts in evidence, or give to the jury any such direction as to enable them to determine what fact, or act, or step, or thing would be such as that the jury might reasonably infer the existence of an intention to defraud, or that they might not reasonably infer such intention to defraud from the proof of the defendant’s having taken any one step or done any one act or thing which had been admitted to prove scienter, without any direct reference to whether the testimony introduced was sufficient to establish the fact that such step, act, or thing related directly to the forgery for which the defendant was being tried. The particular charge which is copied above, as well as the charge taken as a whole, was defective and insufficient in not making an application of the law to the issue being tried, nor giving to the jury such instructions as would enable them to apply the facts to the law, with reference to the issue of guilty or not guilty of the offence charged in the first count in the indictment, to wit, the forgery of the transfer from Smith to Bell of the land-certificate described therein.

To our minds, the remarks of the chief justice of the Supreme Court in Marshall v. The State, 40 Texas, 200, which follow, are as applicable to the present case- as they were to the one then under consideration, changing only the character of the offence: “ The charge of the court excepted to is composed of definitions of murder, assaults with intent to murder, an aggravated assault, and a common assault, together with explanatory provisions relating thereto, extracted from the Penal Code. There is no effort, in giving the charge to the jury, to ‘ distinctly set forth the law applicable to the case ’ as developed by the facts proven on the trial, which is required in every case of felony whether asked or not. [Citing the article.] When there is a failure to perform this duty, and an exception thereto is made at the time of the trial, and the exception is made to appear by a bill of exceptions, it is expressly made good cause for the reversal of the judgment of conviction.” Citing Pasc. Dig., art. 3067.

We are of opinion that the charge of the court in the present case comes clearly within the rule in Marshall’s Case as quoted above. With the exceptions that the charge instructs the jury as to the presumption of innocence and the reasonable doubt, and that the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses, and directs them to apply the law as found in the charge to the evidence before them, the whole charge is made up of extracts from the statute under which the defendant was being prosecuted.

Because of error in the charge of the court, the judgment will be reversed and the case remanded for a new trial.

Reversed and remanded.