Preston v. State

48 S.W. 581, 40 Tex. Crim. 72, 1898 Tex. Crim. App. LEXIS 220

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1898
• Docket: No. 1875.
• Status: Published

Opinion

HENDERSON, Judge.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of five years. The indictment was for uttering an alleged forged deed to 160 acres of land in Atascosa County, by tendering said deed to the county clerk of said county for record. Appellant complains because the court admitted in evidence a deed from W. M. Burke to John W. Preston, on the ground that the execution of said deed was not in issue, and was irrelevant and immaterial, and, in connection with said deed, in admitting also the evidence of Burke, Nicholson, and Maddox. We fail to see any error in this action of the court. The deed from Burke to Preston was so intimately connected with the transaction alleged against appellant as to be a part thereof. Said deed was the connecting link between the alleged forged deed and appellant, and showed his interest in the matter, and was executed at the same time, and the acknowledgment taken before the same notary. The testimony of the witnesses in regard to the entire transaction, we think, was admissible.

Appellant also complains that the court erred in admitting in evidence the testimony of H. G. Martin and F. M. Lowe, to the effect that there was pending in the District Court of Atascosa County, Texas, a certain civil suit, in which the Hilburn heirs were plaintiffs, and John W. Preston defendant, and in permitting said witnesses to testify that the W. P. Felps survey was in controversy in said suit, and that defendant used in evidence the deeds from W. P. Felps to W. M. Burke, and from said Burke to John W. Preston. We believe, on objection, the court should, have required a certified copy of so much of the proceedings in the District Court of Atascosa County as the State desired to use. With said certified copy of the records,before the court, we believe it would have been entirely competent for the witnesses to state that said deeds were used in said suit by appellant as evidence on his behalf. Although this was not the transaction charged against appellant, and might be considered another uttering of said deeds, yet it was competent testimony, as showing a use by appellant of said deeds, and illustrating his intent and purpose in having said deed recorded.

Appellant claims that the court erred in excluding from the jury the certified copy of the indictment in the District Court of Bexar County, Texas, against John W. Preston, who was charged with the offense of forging the deed mentioned in the indictment herein, and in excluding from the jury the judgment of said District Court of said county, showing the trial and acquittal of defendant on said charge. Appellant insisted that this evidence was admissible on his plea in bar, which, he says, was still before the court. We believe said testimony was properly excluded. Forgery, and uttering the same forged instrument are two distinct offenses, and a conviction for one is not a bar to prosecution for the other.

By appellant’s fifth assignment of error, he questions the action of the court in admitting the testimony of J. H. Claridge, to the effect that he and Hallman, in the fall of 1894, met the defendant and A. H. Nicholson in each other’s company, on South Flores Street, in San Antonio. Claridge testified that in the fall of 1894, before the election, he was walking on South Flores Street with H. L. A. Hallman, and they met the defendant, John W. Preston, and A. H. Nicholson coming up the street, and they seemed to be talking with each other. When they met, all the parties stopped, and Hallman introduced witness to Nicholson and Judge Preston. They passed a few words and then walked off together. Appellant objected to this testimony, because it was long after the alleged offense, being eighteen months after the execution of said deed, and nine months after it had been filed for record, and that the testimony was irrelevant and immaterial; that said transaction threw no light on the issues in the case, either as an independent fact, a collateral fact, or scienter, or as a corroborating fact. An examination of the record discloses that a crucial point in the State’s case was to show that appellant, John W. Preston, knew A. H. Nicholson at the time of the execution of the deed from Felps to Burke; for, according to the proof, Mcholson personated Felps, the owner of the land, in the execution of the deed. There is no testimony outside of the testimony of Mcholson and Burke—and they were both confessed accomplices— that appellant, Preston, was acquainted with Mcholson at the time of the alleged forgery. If it should be shown that appellant knew Mcholson at that time, then he knew that he was not Felps, the owner of the land, and whom he assumed to personate. Of course, any competent evidence to show that these parties were acquainted at that time was admissible. But we do not believe that the fact that these parties were seen together eighteen months after the alleged forgery and nine months after the alleged uttering of said deed, in the absence of any other fact or circumstance, would tend to prove that they knew each other at the time of the alleged forgery. Moreover, this testimony was calculated to be used by the jury in connection with the use of said deeds in the civil suit in Atascosa County, which occurred after the alleged meeting between them in San Antonio, and so inculpate appellant in knowingly uttering said deeds on that occasion, and thus to be used injuriously against appellant on the trial.

Appellant complains of the following charge on accomplice’s testimony: “You are instructed, under the evidence in this case, that the witnesses A. H. Nicholson and W. M. Burke were accomplices in the commission of the offense for which the defendant is on trial, if you find such offense was committed; and you can not find the defendant guilty upon the testimony of these two witnesses, unless you are satisfied their evidence has been corroborated by other evidence tending to establish that the deed described in the indictment from W. P. Felps to W. M. Burke was a forgery, and that the defendant, knowing the same to be a forgery, filed, or caused the same to be filed, for record in the office of the county clerk of Atascosa County, Texas, with intent to injure or defraud; and it is not sufficient that said witnesses corroborate each other, but they must be corroborated by other evidence than theirs tending to establish that the defendant did, in fact, commit the offense for which he is on trial.” The grounds assigned as objection to this charge are (1) that the charge instructed the jury that Nicholson and Burke were accomplices in the offense for which the defendant was then on trial; (2) that there was testimony tending to show that Joe Maddox was also an accomplice, and that this charge eliminated him, and the effect was to instruct the jury that his testimony would corroborate the testimony of Nicholson and Burke. Appellant, in this connection, asked a number of special instructions on the subject of accomplice’s testimony, which he says would have cured, if given, the error of the court.

While it is true that said Burke and Mcholson did not participate in uttering said alleged forged deed, and were not particeps eriminis in that offense, yet we take the charge as given by the court was merely intended to characterize them as accomplices under the statute covering the testimony of accomplices. We believe, however, that it would have been better for the court to have instructed the jury, if they believed that said parties participated in forging the deed, which was alleged to have been subsequently uttered by appellant, that they were, in contemplation of our statutes with reference to accomplice’s testimony, accomplices, and that their testimony required corroboration, and, in the absence of corroborating testimony, no conviction could be had of appellant on the charge of uttering said forged instrument.

But the second ground of objection urged involves a more material error than this. If there is testimony in the record tending to show that Maddox may have been an accomplice in the forgery of said deed, then it was not within the province of the court to take this fact from the jury. Unquestionably the charge given had this effect, ,for it singled out Burke and Nicholson, and instructed the jury that they were accomplices, which was equivalent to telling the jury that they were the only accomplices in the case. We have examined the record carefully in this regard, and in our opinion there is testimony tending to show that Maddox was an accomplice. The testimony shows that he was the notary before whom the alleged forged deed from Nicholson, who personated Felps, was acknowledged. The certificate of acknowledgment contains this clause: “On this day personally appeared W. P. Felps, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged,” etc. It was shown by the accomplices Burke and Nicholson, as before stated, that Nicholson, with the knowledge of appellant, personated Felps in the execution and acknowledgment of said deed. Maddox, the notary, testified that Nicholson was the same person who acknowledged said deed before him. He states further, that Burke introduced the man as W. P. Felps, and that he (Nicholson) sat down at the desk, and with pen and ink signed the name of W. P. Felps to said deed in witness’ presence, and immediately acknowledged the same, and witness put his certificate of acknowledgment thereto; that the acknowledgment was paid for by Burke, and they left the office together. About an hour thereafter, Burke and Preston came into the office and Burke signed the deed to Preston, and he took his acknowledgment, which was the deed from Burke to Preston for the same land. In explanation of his certificate, this witness testified: “When I lived in Austin, about 1882 or 1883, I knew a man in Austin named Felps, and Mr. Burke, whom I well knew, introduced the man who executed the paper as Mr. Felps. I thought I knew him anyway, and inasmuch as he was introduced to me as Felps by Burke, whom I knew well, I made the certificate that he was well known to me. I had seen the man who had signed the deed as Felps on the streets in San Antonio once or twice, and took him to be the same .person whom I knew in Austin as Felps. They were both gray-haired, alike. When Burke introduced him to me, I did not mention to him that I knew him in Austin, nor did I refer to the fact that-I knew him or had ever met him before.”

Now, the question arises, does said explanation satisfactorily account for the false certificate of the notary Maddox ? for that certificate evidently tends to inculpate him in the fraudulent making of said deed, along with Nicholson, Burke, and Preston. A certificate of acknowledgment means something, and the statute expressly provides certain essentials to he embodied in the certificate of acknowledgment by the grantor of a deed. If he is known to the officer he can so certify. If he is not so known, it is his duty to require that he he made known to him before taking his acknowledgment; and in such case the certificate of acknowledgment must show the person by whom the grantor was made known to the officer. True, the officer taking the acknowledgment in this case, though he violated the statute, may have been entirely innocent of any criminality in the transaction. His explanation of the testimony showing his párticipaney in the matter may have been the truth; but was it Avithin the power of the judge himself to solve this question, or, rather, was it not his duty to submit this explanation to the jury, in order that they might pass upon the question of whether or not the Avitness Maddox Avas an accomplice P In addition to this, it appears that the witness Maddox had previously been indicted for the offense of being one of the parties engaged in the forgery of this .deed. Burke and Nicholson were also indicted. The case appears to have been dismissed against all of them, and they were used as witnesses against appellant. This fact, in connection with the Avitness-' false certificate to said deed, certainly raised the question whether or not he was an accomplice; and, under the circumstances, this matter should have been left to the jury to determine. On the contrary, the court told the jury that Maddox was not an accomplice, and that the testimony of Nicholson and Burke could be corroborated by him. Maddox Avas a very material witness in the corroboration of said witnesses Burke and Nicholson, and the jury may have found their verdict on the testimony of Burke and Nicholson, accomplices, corroborated by the testimony of Maddox, Avho, they were in effect instructed, was not an accomplice; whereas, if they had been left free to determine this issue for themselves, they may have believed that all three were accomplices. We think this error of the court was a material one, and to the prejudice of appellant.

It is not necessary to discuss other assignments, but, for the errors of the court heretofore shown, the judgment is reversed and the cause remanded.

Reversed and remanded.