Grooms v. State

50 S.W. 370, 40 Tex. Crim. 319, 1899 Tex. Crim. App. LEXIS 44

• Court: Court of Criminal Appeals of Texas
• Decided: March 22, 1899
• Docket: No. 1731.
• Status: Published

Opinion

HENDERSON, Judge.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of six years, and he appeals.

Appellant made a motion in arrest of judgment, on the ground “that said indictment is not sufficient to support the conviction, in that it is alleged therein that the forgery charged was committed in Atascosa Count)r, Texas, but sets out and quotes the alleged forged deed, which purports on its face to be executed in Bexar County; and does not allege any act other than said allegation of forgery constituting the offense to have been committed in Atascosa County.” There is nothing in this contention. Article 553 of the Penal Code authorizes the offense of forgery of land titles to be prosecuted in the county where the forgery was committed, or in the county where the land is situated about which the offense of forgery was committed. It is shown that the land in question is situated in Atascosa County.

Appellant also assigns as error the fact that the venue was changed by agreement to Traxds County. Article 553, supra, authorizes prosecutions for forgery of land titles to be prosecuted also in Travis County; that is, Travis County, as well as the county where the land is situated, has original jurisdiction. But the complaint here is that, while the prosecution could have originated in Travis County, yet there was no authority to transfer the venue by agreement from Atascosa to Travis County; it being insisted in this connection that consent will not confer jurisdiction. Inasmuch as Travis County has original jurisdiction, it occurs to us that it xvas competent to transfer the jurisdiction from Atascosa to Travis County. If Travis County, under no circumstances, could entertain jurisdiction of the offense, then consent would not give jurisdiction. But the venue was properly changed to Travis County on another ground. The venue was changed from Atascosa Comity on some account. While the attorneys agreed to the change on account of the existing prejudice, of course the court itself must have moved in the matter; and it was authorized under article 613, Code of Criminal Procedure, to change the venue on its oxvn motion. But this article authorizes the change to be made to any county in his oxvn or an adjacent district. Travis County is not in the district adjoining the district in which Atascosa County is situated. But article 619, however, authorizes that if it be shown in the application for a change of venue, or otherwise, that all the counties adjoining that in which the prosecution is pending are subject to some valid objection, the cause may be removed to such county as the court may think proper. In support of the change of venue, it will be presumed that the court acted properly in making the change to Travis County, and that the court was informed by some means that the same reasons existed in the adjoining counties that existed in Atascosa County for the change of venue; and in such case it was authorized to change the venue to any other county, as it might think proper.

Appellant made a motion for a severance as between himself and F. E. Grooms. The motion shows that they were indicted in separate indictments, and alleges in general terms that they were indicted far one and the same transaction. This was denied by the State, which filed a controverting affidavit on the subject. The proof showed very clearly that they were separate and distinct transactions. If the plea itself had gone into details, it would have shown a distinct transaction from that charged against appellant; that is, the indictment against F. E. Grooms set up the forgery of a different deed. True, it was with regard to the same land, and was a link in the title; but it was none the less a separate and distinct forgery, and no part of the forgery for which appellant was indicted. Appellant complains that it was improper for the court to authorize any inquiry or investigation in order to determine whether or not it was a different transaction; and that when he made his application, and recited the fact, the hands of the court were tied, and it was compelled to concede the full truth of the general affidavit, and grant the severance. We do not believe this contention is correct, and it was entirely competent for the State, in reply, to show the fact that they were different transactions ; otherwise, in any case the State would be liable to be imposed on by general affidavits claiming a severance. The cases cited by appellant of King v. State, 35 Texas Criminal Reports, 472 and Shaw v. State, 39 Texas Criminal Reports, 161, arc not in point. Ko question was made in said cases that the indictments were for distinct transactions. We hold that it is entirely competent for the State, in reply to a motion to sever, to set up and establish the real facts; and if these show that they are different and distinct transactions, it is proper to overrule the motion to sever.

On the trial the State offered in evidence a photographic copy of the deed from Drury Gardner to J. W. Wilson, bearing date August 6, 1866. This was a copy of the alleged forged instrument. The State also offered in that connection the certificate of acknowledgment to said deed, and also a photographic copy of the deed from J. W. Wilson to G. G. Grooms of the same land, bearing date October 3, 1896, and the certificate of acknowledgment thereto, bearing date the 3d of October, 1896. The certificates and last mentioned deed were offered in evidence as bearing on the intent, etc., of the defendant. In connection with the introduction of said deeds and said photographic copies, and as a predicate therefor, the State introduced in evidence notice to the defendant and his attorneys to produce said deeds, which were charged to be in their possession, so that they might be used as evidence. And the State also offered the testimony of the photographer who took the said photographic copies, tending to show their correctness. Appellant objected to this evidence, because photographic copies could not be used in evidence; for a sufficient predicate had not been laid for the introduction of said copies, by showing that they were accurate copies. In our opinion, the notice served on appellant and his attorneys to produce said deeds was sufficient; and, besides, the record shows that he had said deeds in his possession, and that he did not intend to produce them. As to the conditions under which said photographic copies were taken, and their accuracy in comparison with the originals, the State introduced the photographer; and his testimony, we think, furnished a sufficient predicate to authorize their introduction as accurate copies of the originals. True, the authorities teach that, before secondary evidence of this character can be resorted to, it must be shown that the copies offered are accurate copies. Eborn v. Zimpelman, 47 Texas, 503; Houston v. Blythe, 60 Texas, 506; Buzard v. McAnulty, 77 Texas, 438; 2 Jones on Ev., sec. 597. It is not necessary here to reiterate the testimony of the-photographer on this matter. It is copied in full in the record, and is quite lengthy. He testified that the photographs were exact as to words and letters, but there may have been a little difference in color; could not swear positively; that the angles and strokes of the letters were accurate; that there might have been a slight difference in length accross the copy; that the forms of the letters were accurate; that, after he made the copies from the plate, he did not compare them with the original, but, from the process and conditions surrounding the taking, he knew them to be accurate; that he made the measurements with his eye; that, from his knowledge of photography, the copies taken were bound to be true copies. We do not believe it can be seriously contended at this day that photographic copies of original writings where the writings are shown to be in the possession of the adverse party, and are not produced on notice, can not be used in evidence. The authorities all teach the contrary. Rice, Grim. Ev., secs. 101-103; 2 Rice, Civ. Ev., chap. 52, p. 1163, et seq.; Endl. Grim. Ev., p. 62. And the same authority has been repeatedly recognized by our own courts. Howard v. Russell, 75 Texas 171; Thomas v. State, 18 Texas Grim. App., 213; Eborn v. Zimpelman, 47 Texas, 503. Mr. Rice, quoting from ITdderzook’s Case, 76 Pennsylvania State, 340, uses this language: “It is evident that the competency of the evidence in such case depends on the reliability of the photograph as a work of art, and this must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The daguerrean process was first given to the world in 1839. It was soon followed by photography. It has become a customary and a common mode of taking and preserving views, as "well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science, that the images on the plate, made by the rays of light through the camera, are dependant on the same general laws which produce the images of outward forms upon the retinae through the lenses of the eyes. The process has become one in general use, so common that we can not refuse to take judicial cognizance of it as a proper means of producing correct likenesses.” Rice, Grim. Ev., sec. 101. As to writings, there seems to be some difference as to the use of photographic copies as standards of comparison; but we do not understand this to apply to the instrument itself, the genuineness of which is in issue. See 2 Jones on Ev., p. 569; Endl. Grim. Ev., p. 62. In this case, the State used proper efforts to procure the originals. They were in appellant’s possession, and if the photographic copies introduced were not correct it would have been a very easy matter on appellant’s part to have produced the originals. He could not be forced to produce them, but the fact that he had said originals, and, when called on, refused to produce them, authorized the use of "the photographic copies, and every intendment will be indulged in favor of their correctness; and, under the proof in this case, no doubt was left as to their being facsimiles of the originals in possession of appellant.

In our opinion, the standards of comparison, including the Gamble against Maloney bill of review, were clearly shown to be in the handwriting of appellant, and were such evidence, in our judgment, as were proper standards for comparison. The most, if not all, of these standards, were confessedly in the handwriting of appellant. Furthermore, the insistence of appellant that Gross, Walsh, and Walling did not qualify as experts in regard to the handwriting of appellant is equally without foundation. As to the latter, he not only qualified as an expert in handwriting, but was familiar with the handwriting of appellant, and saw the original deeds, and not only spoke from the photographic copies, but from the original deeds themselves.

It appears that the State was unable, to make out its case by showing affirmatively that the deed appellant was charged to have forged was not in the handwriting of Drury Gardner. No witness knew him, and evidently the State was not able to procure any testimony as to his handwriting, and could only attack the genuineness of his signature by a negative pregnant; that is, by showing that the Drury Gardner deed was in the handwriting of appellant. Walling, Reed, and the Wallaces, and perhaps some other witnesses, were perfectly familiar with appellant’s handwriting. They had seen the original deed alleged to have been forged. These and other witnesses qualified as experts, and, with the photographic copy before them, by comparison with standards which had been proven up, they testified that the Gardner deed was in the handwriting of appellant. The fact that some of the witnesses may have been shaken as experts in the cross-examination does not go to the admissibility of their testimony, but rather to its strength. We hold that it was entirely competent to prove, as was done, that Drury Gardner did not execute said deed, by proving that same was executed by appellant. In addition to the direct proof of experts on this question, the State introduced abundant testimony, of a circumstantial character, tending strongly to show that appellant wrote and executed said deed. The peculiar circumstances attending the purchase,—the fact that the man Wilson did not go to the county seat of Atascosa to close the transaction, but stopped some twelve miles short of said point; that appellant did not go to meet him, but sent his brother; that same was not executed in the presence of any officer, but that the brother of appellant subsequently Avent before the officer and proved up the deed for record; the further fact of the great disparity in price paid and the actual value of the land, and the mystery attending the negotiation of purchase; that appellant never saAV the vendor, though he might have seen him, if he in fact existed; and the further fact that the brother of appellant, aaIio completed the negotiation at the time it was executed, according to his testimony, failed to secure the most 'important paper from this stranger, Wilson, to wit, the Gardner deed; and that this man Wilson does not appear to have been known in that section, nor seen by any one except the brother of appellant, F. E. Grooms, and one or two of his witnesses, and not identified by them; and also appellant’s anxiety to recover the deeds, after .he had parted AArith them to Siler for inspection by his attorneys,—these, and other circumstances, tend very strongly to support the theory of the State, as predicated on the expert testimony; and we believe the jury were abundantly Avarranted in finding that the Gardner deed was executed by appellant, though there was no direct proof as to said deed not being in the handwriting of Drury Gardner.

Appellant complains that the State, on cross-examination, brought out from the defendant new matter, about AArhich he was not interrogated in chief, to wit, with reference to the writing by him of the original bill of review in the case of Gamble against Maloney, an original paper of the District Court of Atascosa County, and which Avas ruled by the court to he a standard for the comparison of the defendant’s handwriting in this case, and which had been used by the State as a standard of comparison. The objection urged by appellant to this testimony is that it was violative of appellant’s constitutional right, in compelling him to give evidence against himself; that the testimony in question was not germane to any portion of appellant’s examination in chief. The rule which seems to be followed by this court on this subject is to the effect that, when a defendant is placed on the stand on his oavu behalf, he is held to Avaive his constitutional right, and can then be cross-examined upon any branch of the case, although he may not have been examined upon such branch of the case in chief. The authorities in other States appear to be divided upon this question. But, aside from this, it occurs to us that the testimony with reference to the handwriting of appellant was germane to his examination in chief. He testified, in his direct examination, that the Gardner deed was not in his handAvriting; that he had eArery reason to believe that it was in Gardner’s handwriting; and he claimed to have had an old letter that came to him Avitli the deed in Gardner’s handAvrit ing. How, it occurs to us that, the hill of review above referred to being airead)' in evidence as a standard of comparison, and proved to have been written by him (appellant), he could be cross-examined with reference to said paper as a standard with which to compare the deed in question. The bill of review was a court paper, and, according to the evidence, had been filed by appellant in said case of Gamble against Maloney; and, as a standard of comparison already in evidence, it was competent, on cross-examination of defendant, to ask him with reference to his genuine writing in said bill of review, in connection with the signature to the Gardner and Wilson deeds.

The State placed J. P. Wallace on the stand, and asked him in regard to the loss of certain abstract of title books of the title to lands in Atascosa County, to which the defendant objected, “because the same is immaterial and irrelevant to the issues in the case, and would prove, necessarily and inevitably, prejudicial to defendant, and therefore would be irremediable.” In reply to this, we might say that the bill is not full enough to authorize us to state that any error was committed in the admission of evidence in regard to the loss of said abstract books. If we were permitted to look back to the statement of facts in order to judge of the admissibility of this testimony, we are inclined to think that the court committed no error in allowing its introduction. These abstract books were the property of Wallace and brother, and were very valuable. The Wallaces at the time had the alleged forged deeds in their possession, the same having been given to them by Siler, who procured them from appellant. Appellant desired to sell the land to Siler, and the deeds had been given to Wallace for examination by Siler. It appears that the Wallaces withheld the deeds, and, appellant having learned that something was wrong, became very uneasy in regard to them, and desired to regain possession of said deeds. About this time, the certain abstract books referred to mysteriously disappeared from the office of Wallace and brother. They suspected defendant with having taken them, and immediately proposed to him, if he would return or see that said books were restored to them, that the deeds would be delivered to him. The testimony strongly suggests an agreement between appellant and the Wallaces to that effect. The abstract books appear to have found their way into the possession of the Wallaces, and appellant did not immediately receive the deeds. He was still anxious in regard to them, and Wallace informed him that, as soon as his brother returned from San Antonio, the deeds would be restored to him in accordance with their understanding. We think this agreement has a direct bearing on the question of forgery. If appellant forged said deeds, he would be very anxious to regain possession of the originals; and this is further manifested by the fact that, when he regained possession of them, he has since failed to produce them. They have not even been recorded. This transaction, in connection with the abstract books, directly involves the suppression of the alleged forged deeds, and we think it was admissible testimony. But, however that may be, the court in its charge excluded this testimony for any purpose whatever.

We think it was entirely competent for the State to show by witnesses that defendant admitted that he had possession of said original deeds, and his remarks in that connection to the effect “that he would not be damn fool enough to give them up.” ¿Nor do we see any impropriety in the district attorney remarking, when such testimony was objected to, that his purpose was to put the original deeds in evidence. It appears that every legal effort was used by the district attorney to accomplish this purpose, and the fact that he may have stated, when the objection was urged by appellant to the testimony regarding said deeds, what his object was, we can not consider illegal or improper. We have examined the record carefully, and fail to find any reversible error therein; and, in our opinion, the evidence fully authorized the jury to convict appellant of the offense of forgery; indeed, they would have been recreant to their duty had they failed to return a verdict of guilty against him. The judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, absent.

[Note.-—Appellant’s motion for rehearing was overruled May 29, 1899, without a written opinion.—Reporter.]