
    MARTIN v. STATE.
    (No. 4246.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Ckiminal Law <§=>190 — Poemee Acquittal —Effect of Granting New Teial.
    Where accused had previously been tried upon two counts, the first charging forgery and the second passing a forged instrument, and was convicted under the second count, thereby acquitting him of the first, he could not again be tried on a count for the forgery, although he was granted a new trial on the charge of passing a forged instrument, on the ground that one of the jurors was a minor, since the first trial was not a nullity; the minority of a juror being only a ground for challenge and not invalidating a verdict.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 375; Dec. Dig. <§=>190.]
    2. Criminal Law <§=j539(2) — Evidence—Sig-natuee of Accused.
    In trial for passing a forged instrument, signatures of accused, written by him at a former trial as a means of comparison of the names written on the alleged forged instrument, was admissible in a subsequent trial for comparison with such instrument, where it was not written in the presence of the jury for comparison purposes.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. <§=>539(2).]
    3. Foegery <§=>47 — Passing Forged Instruments — Sufficiency of Evidence.
    Where accused denied under oath execution of a forged instrument he was accused of passing, and the only evidence in regard to it in reference to comparison of handwriting was the signature of defendant, which was subsequently handed to the jury, there was not sufficient evidence to take the question of forgery to the jury, in view of the statute providing that where the execution of the instrument is denied under oath, proof of comparison only is not sufficient to establish the fact that defendant made the writing.
    [Ed. Note. — Por other cases, see Forgery, Cent. Dig. § 123; Dec. Dig. <®=>47.]
    4. Indictment and Infoemation <§=>184 — Proof and Variance — Person Unknown.
    Where an indictment alleged that the forged name was somebody to the grand jury unknown, it was necessary on trial thereof, where the diligence of the grand jury to ascertain the name of the party was put in issue, to show that the grand jurors used due diligence in order to ascertain the name.
    [Bd. Note.—Bor other cases, see Indictment and Information, Cent. Dig. § 674; Dec. Dig. <®=sl84.]
    6. Witnesses <©=5337(5)—Credibility of Accused-Conviction on Former Trial.
    Evidence of conviction on a former trial in the instant case cannot be used to impeach an accused testifying for himself.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1132, 1140-1142, 1146-1148; Dec. Dig. <$=>337(5).]
    Appeal from District Court, El Paso County; Dan M. -Jackson, Judge.
    C. G. Martin was convicted of passing a forged instrument, and he appeals.
    Reversed and remanded.
    John T. Hill, of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment contains two counts, the first charging forgery, and the second, passing a forged instrument. The conviction was had under the second count.

There had been a previous conviction under the second count, which was set aside by the trial court because it developed on motion for new trial that one of the jurors was a minor. During this trial appellant in various ways sought to prevent the trial of appellant on the first count, for forgery. The court overruled all of his grounds and tried him on both counts. The court refused to consider appellant’s grounds for the same reason that he granted the new trial in the former conviction; that is, the incompeteney of the juror who was a minor. We suppose the idea of the trial court was that the first trial was a nullity. To this position of the court we cannot agree. The minority of a juror is a cause for challenge, and seems to have been so from the enactment of the original Penal Code in 1856. This question came for consideration by the Court of Appeals in Trueblood v. State, 1 Tex. App. 650. It was there held the verdict would not be set aside for that reason alone. It is unnecessary to discuss reasons that would require a revision of that case. It has never been overruled, so far as the writer is aware. Therefore we sustain the contention of appellant that the conviction under the second count on the former trial acquitted appellant of the forgery set out in the first count, and he should not have been tried on this trial under that count. The court submitted the first count to the jury in this trial, as he' did in the former. The jury convicted under the second count in both instances.

Appellant also in proper time reserved an exception to the court’s charge, submitting the first count of the indictment to the jury for their consideration in this trial. The court was in error in doing so under the authority already mentioned.

Another bill recites appellant testified in his own behalf on the former trial, and while testifying wrote his name. The bill recites that he objected to it at that time. It seems to have been written for the purpose of using it as a means of comparison with the name written on the alleged forged instrument. Various objections were urged,. and the court in signing the bill says he permitted it because W. H. Fryer testified he saw defendant do the writing at the former trial after having taken the stand in his own behalf. The bill is not full enough, we think, to show error. Names written by the accused in this manner can be used for comparison in regard to forged instruments. There seems to be a qualification to this, however, by the decisions to the effect that it would not be admissible if written in the presence of the jury for comparison purposes. These cases will be found collated by Mr. Branch in his Annotated Penal Code on page 863. This bill does not show such to have been the case in reference to this particular matter.

Appellant, however, moved to withdraw and exclude from the consideration of the jury the signature and paper previously mentioned. The court refused, and appellant excepted. The basis of this contention seems to be that it could not become evidence before the jury for the reason that the execution of the instrument set out in the indictment was not shown to have been executed by the defendant, and this evidence in regard to the writing was introduced as a means of comparison to show, if it could by this means, that the handwriting in the alleged forged instrument was in the same writing as the name written by appellant. The only evidence in regard to it in reference to comparison of bandwriting was the signature and the subsequent handing of it to the jury. The jury passed it among themselves, and this seems to have closed this part of the case. No experts were placed on the stand, and no evidence in regard to the similarity was introduced. The name of appellant as written and the view of it by the jury was all that constituted this part of the ease. Appellant denied the execution of the forged instrument under oath, and testified to facts and circumstances showing that he did not forge the instrument or write any part of it. This was a serious question in the case, the state relying upon the fact that he passed the instrument to show that it was a forgery, and that he knew it was a forgery. The jury acquitted him of the forgery, and convicted him of passing it. It was necessary for the state to show that he knew the instrument was a forgery when he passed it. The statute provides that where the execution of the instrument is denied under oath, proof of comparison only is not sufficient to establish the fact that defendant made the writing. Mr. Branch has collated these authorities on page 863 of his recent Annotated Penal Code, citing Spicer v. State, 52 Tex. Cr. R. 180, 105 S. W. 813; Mahs v. State, 54 Tex. Cr. R. 393, 113 S. W. 11; Brooks v. State, 57 Tex. Cr. R. 251, 122 S. W. 386; Batte v. State, 57 Tex. Cr. R. 125, 122 S. W. 561. There are other circumstances relied .upon by the state to show that he knew the instrument was a forgery, yet it was a disputed issue, and the jury should haye been cautioned that this alone would not form the basis of a conviction. Under the circumstances of this case the writer does not believe this ought to have gone before the jury. There ought to have been other testimony than the mere passing of the signature to the jury. What the jury discovered, or thought they discovered, from comparison is not shown by any testimony. The only means of arriving at what they did discover is to be found in the verdict they rendered.

Appellant asked a special charge to the effect that the jury should be informed that they could not convict appellant on this trial for forgery. This was refused. This, from what is said in the previous portion of this opinion, should have been given. Exception was taken to the court’s charge, submitting that issue to the jury, and this requested instruction refused. He could not be tided on the count for which he was acquitted.

Appellant asked another special instruction which was, refused, as follows:

“You are instructed that it is necessary to a conviction of defendant in this cause that the evidence should show upon the issue in the second count in the indictment that the grand jury used diligence to ascertain the name of the party who forged .said instrument, and you are instructed that the state has failed to show that any diligence was used by the grand jury to ascertain the forger of said instrument, and you will therefore return a verdict of not guilty upon the second count.”

This was refused. Proper. exception was taken to the court’s charge for refusing, in the first instance, to. give such charge,, and an exception was also reserved to the court’s refusal to give appellant’s special requested instruction. The evidence on this question was to the effect, both by bill of exceptions and statement of facts, that the grand jurors had no evidence before them on this question; that they knew of none, and seemed to have sought none; that they returned this bill only upon the testimony taken before the examining court. This was upon the theory that the indictment alleged that.the forged name was somebody to the grand jurors unknown. The name of Foord was signed to the document. There was a witness named Ford who testified that it was not his signature, and that he knew of no man by the name of Foord; that he had known of two or three other Fords; that one of them 'had been dead for about a year, and there was one at Ft. Bliss, close to the town of El Paso, but he was under the impression .that that Ford had died very--recently. Wherever the grand jury alleges a necessary party’s name to be unknown and it becames an issue on the trial of the case, in order to sustain such allegation it must be shown that the grand jury used due diligence in order to ascertain the name. Here it is alleged'it was forged by somebody to the grand jurors unknown, but there was no effort on their part to ascertain who that party was. One of the grand jurors, in a general way, stated that they had no way of ascertaining, but that is his conclusion. He states no fact except that the- indictment was returned from the testimony taken in the examining court. Whether that testimony disclosed the name or did not disclose the- name of the party who is supposed to haye forged the instrument is not stated anywhere in the record. The state shows other parties were with appellant at the time he passed the instrument, and there are detailed conversations between the parties. We are of opinion that appellant’s contention is correct. There should have been some evidence when the question was raised as to what diligence was exercised by the grand jury in regard to this question. This has been the settled rule in Texas since the case of Jorasco v. State, 6 Tex. App. 238. The question came in Jorasco v. State, who seems to have been the same party, in 8 Tex. App. 540. These cases have been followed since their rendition.

While appellant was on the stand testifying he was asked if he had ever been convicted in this case and in Colorado. Various objections were, urged to this, and especially that part of it which refers to the previous conviction in this case.' Appellant’s contention is correct, so far as it applied to the conviction in this case. Evidence of the conviction in the instant case, occurring on a former' trial, cannot be used. This has been the subject of prior decisions. Upon another trial the court will not permit this testimony to go. to the jury.

For the reasons stated, the judgment is reversed, and the causé remanded. 
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