Thornley v. State

34 S.W. 264, 36 Tex. Crim. 118, 1896 Tex. Crim. App. LEXIS 128

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 1896
• Docket: No. 903.
• Status: Published

Opinions

HURT, Presiding Judge.

Conviction for passing a forged instrument. Punishment assessed at two years’ confinement in the penitentiary. It appears, from the record, that the appellant was tried for-forging the instrument in question on the 24th day of June, 1895, in the Forty-eighth Judicial District Court (Tarrant County). At that .time the instrument alleged to have been forged was in the possession of the father of the appellant, and was used upon the trial of the forgery case. After that trial, the father left Texas, and went to South Carolina, carrying with him the forged instrument. The indictment in this case was presented into the District Court of the Seventeenth Judicial District (Tarrant• County), on June 26th, 1895. From the testimony, it appears that the instrument was then in the possession of the father of the appellant. The indictment in this case alleges that said instrument was “in the possession or power of the said Perry F. Thornley, or is lost or destroyed, and is not within the reach of the process of the court, and not accessible to the grand jury.” Said indictment gives notice to the appellant to produce the said original instrument upon the trial of the case, or secondary evidence will be used to prove its contents. The indictment does not attempt to set out the instrument by its tenor, but its substance. Counsel for the appellant insists that the notice to produce the instrument was not sufficient. We suppose that the contention is that the party in possession of the instrument should have been summoned to subpoena duces tecum. This was impossible, for the instrument was in the possession of the father of the appellant, who was beyond the process of the court. The indictment alleges the fact that the said instrument was not within the reach of the process of the court, and the testimony for the appellant establishes the truth of this fact beyond any sort of question. This being the case, all that could have been done was done. It is impossible for the State to send to another State its process, and bring to this State the father of the appellant, or the instrument. Upon this subject Mr. Bishop says “that, before evidence of the forgery will be admitted at the trial, the forged instrument must be produced, or its nonproduction justified from necessity, as by showing that it is lost or destroyed, or not within the reach of the process of the court. The general rule requiring the instrument is met by the fact that the instrument was not within the reach of the process of the court.” See, Volume 2, § 433. As before stated, the indictment does not attempt to set out the instrument by its tenor, but its substance. That being the case, it is altogether immaterial whether the word “or” appears before the words “M. M. Co.” In this case, however, a copy of the instrument was made. This copy was introduced in evidence, and is correctly sworn to by two persons—one who made it, and the other who compared it. If the instrument had been set out by its tenor, this proof would amply sustain the indictment. It is contended, however, that there is no evidence in this record tending to establish the fact that the instrument was a forgery. We are of the opinion that there is ample proof of that fact, and that appellant knew it to be such when he uttered it. It is also contended, as there was evidence introduced tending to show that the appellant was in possession of another forged instrument, that, therefore, it was reversible error (whether excepted to or not) for the court to omit, in its charge, to limit that evidence to its proper office. This omission in the charge was not excepted to at the time, nor mentioned in the motion for a new trial. It is urged for the first time in this court. Notwithstanding this, if the omission was calculated to injure the rights of the accused, under all of the circumstances of the case, we would reverse the judgment. Now, if the court had charged the jury, as contended by the appellant, the charge would have told the jury that they could look to the evidence tending to show the other forgery for the purpose of determining the intent upon which the appellant acted in this case. There wras no danger that the jury would convict the defendant on this trial of the other forgery. By such a charge their attention, let it be shaped as it may, would have been specially called to a very strong criminative fact in this case. We are of opinion that this omission, under the circumstances of this case, was not at all calculated to injure the accused. Counsel for appellant insist that there was error in permitting J. E. Harper to testify that he had not signed the note, etc., thus proving its forgery. The objection was that the indictment had not alleged that J. E. Harper had signed the note. This is a prosecution for passing a forged instrument, and, under such a prosecution, these allegations are not necessary. See, Willson’s Crim. Forms, No. 311, for passing and attempting to pass as true a forged instrument. 2 Bishop’s Crim. Proc., § 447. We find no error in the judgment which requires a reversal thereof, and it is therefore affirmed.

Affirmed.

Davidson, Judge, absent.