
    WATSON et al. v. STATE.
    (No. 4622.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Cbiminal Law <©=>372(12) — Evidence oe Otiieb Forgeries — Coubse oe Conduct.
    Where other notes were in possession of defendants in connection with the forged note upon which the prosecution was founded, and the notes were all used by defendants to swell the apparent assets of the bank of which they were active officers, the admission of testimony tending to show that such other notes had been forged was not error, where such testimony was properly limited by the court’s charge to show a course of conduct.
    2. Criminal Law <©=>1174(4) — Harmless Ekbob — Separation oe Juey.
    Where it appears that a temporary separation of one juror from his fellows did not and could not have affected the verdict or impartiality of the trial, a reversal is not authorized under Vernon’s Ann. Code Cr. Proc. 1916, art. 745, prohibiting the separation of a jury after it is impaneled and sworn to try a felony case.
    3. CrijIiinal Law <©=>957(2) — Impeachment oe Vebdict — Testimony oe Jubok.
    It would be against public policy to permit impeachment of a verdict by testimony that after agreeing to the verdict a juror desired to retract.
    4. Cbiminal Law <£=957(2) — New Trial— Misconduct oe Juby.
    Testimony of a juror that, although he believed defendants not guilty, he acquiesced in a verdict of guilty because he wanted to go home was insufficient to authorize a new trial.
    5. Cbiminal Law <©=>1158(1) — Finding Based on Conelicting Evidence — Review.
    Where on motion for new trial after full investigation the court found upon conflicting evidence that the jury did not misuse accused’s failure to testify, such finding will not be disturbed on appeal.
    6. Fobgeby <©=>44(½) — Sueeiciency oe Evidence.
    In a prosecution of two defendants for forgery, evidence held sufficient to support a conviction of one only.
    On Motion for Rehearing.
    7. Cbiminal Law <©=>1035(5) — Mattees not CONSIDEBED BELOW — REVIEW.
    Where the contention that the insanity of a juror rendered the verdict void was not raised in the court below, it will not be considered on appeal, as relief against void judgments upon matters not contained in the record on appeal must be sought in the court below in the first instance.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    J. E. and W. R. Watson were convicted of forgery, and appeal.
    • Judgment affirmed as-to defendant first named, and reversed and remanded as to the other.
    Boyd & Bell and Geppert & Wroe, all of Teague, for appellant E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellants were jointly indicted, tried, and convicted of forgery. The instrument which they were charged with forging was a note for $151.25, dated Teague, Tex.; August 20, 1916, payable to the Farmers’ & Merchants’ State Bank or order at Teague, Tex., signed “G. F. Stilwell.” The note was on one of the printed forms of the Farmers’ & Merchants’ State Bank of Teague. G. S. Stillwell testified that he had been a customer of the hank, but had ceased to do business with it about 90 days before it was taken over by the state department. He further said that he did not sign the note nor authorize any one to sign the note for him. 1-Ie said he did know who signed it; the signature did not look like his, and he had never been requested to pay it.

A witness named John Bagett testified to his acquaintance with appellants, and that they were connected with the bank mentioned, and that he had worked for them five years prior to June, 1916; that J. E. Watson was active vice president, and W. R. Watson was cashier. He testified that he was familiar with their handwriting, and said:

“I think J. E. Watson wrote the body of this note, and the figures seem to be in his handwriting, the serial number.”

He said the handwriting on the note resembled J. B. Watson’s handwriting; that he was not positive who wrote it, but that it was shaded like J. E>. Watson wrote, and that was about all that resembled his handwriting ; that the note had no revenue stamp on it; and that he thought that all notes that were used as assets of the bank had revenue stamps on them.

Another witness, Ghancelor, testified that he had worked in the bank, knew appellants, and was familiar with their handwriting, and that J. E. Watson wrote the “$151.25 and the 8/20,” and it looked like he wrote the name of “G. S. Stillwell”; that all the writing on the note was written by the same party; that all the Watsons made loans and took notes for the bank when he worked there in 1911. Cross-examined, he stated:

“Yes, sir, I think J. E. Watson wrote the note but I didn’t see him do.it;” that the note had been shown him before; that he had formed the opinion that J. E. Watson wrote it; that that was his opinion when he took the stand.

He said:

“I am not uncertain about who wrote the name ‘Stilwell,’ but we will all hesitate. I did not have an opinion as to who wrote the note before I saw it.”

J. R. Moore testified that he was appointed receiver of the Farmers’ & Merchants’ Bank of Teague on the 29th of August, 1916, and that the note in question, and several other notes mentioned by him, were turned over to’him as such receiver; that the notes mentioned, including the one in question, when turned over to him, were listed separately from the other assets of the bank, and that, taking these notes into consideration, there were more assets than necessary to balance the hooks. Other witnesses testified that the Stillwell note, the one in question, was among the assets of the bank, and Bank Examiner McKinnon testified that he had examined the hank on various occasions, and that the appellants had assisted him in going over the assets when he requested them to do so; that he had talked to them all with reference to the notes; that he examined the bank in May, 1916, and that he had discussed with them various notes, including some of the notes described in the list which Receiver Moore identified; that he was not certain that he talked to W. R. Watson about these particular notes. Another witness testified that he was present when McKinnon went over the notes described by him with appellant, J. E. Watson. Several witnesses were introduced who testified that the notes mentioned by Moore, receiver, as in the list and which purported to bear the signature of the witnesses were never signed by them or under their authority. These witnesses declared that they had not been called upon to pay them. Several witnesses for the defendants testified that they were acquainted with the signatures of J. E. and W. R. Watson, and that in their opinion the signature to the Stillwell note was not written by either of them. They gave it as their opinion that part of the body of the note was written by J. E. Watson. There was some testimony that there was a package of notes kept on J. E. Watson’s desk which were not used in balancing the books of the bank, and to the fact that the notes that were used for that purpose bore revenue stamps, and that the Stillwell note was without revenue stamp.

Appellant presents three bills of exceptions: First, relating to alleged misconduct of the jury; second, with reference to refusal to instruct a verdict for W. R. Watson ; and the third, omitting the formal parts, is as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, after the state had rested, the defendants, J. E. and W. R. Watson, filed and presented to the court the following motion: ‘Now come J. E. and W. R. Watson, defendants herein, and move the court to exclude all the testimony introduced with reference to alleged collateral forgeries, because there has been no evidence introduced showing that either one of these defendants participated or was connected in any way wdth said alleged forgeries.’ * * * The court, after considering the above motion, overruled same, and that the said defendants, J. E. and W. R. Watson, then and there excepted in open court, and now tenders this bill of exception, and asks that the same be signed and. filed as a part of the record in this cause. [Signed hy attorneys for defendants.]”

This bill of exception is quite, meager. It fails to set out the evidence which it complains of the failure of the court to exclude or to identify with certainty or show the connecting circumstances rendering it inadmissible. Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 750, 66 Am. St. Rep. 808; Phillips v. State, 50 S. W. 378; Kyle v. State, 53 S. W. 846; C. C. P. art. 744; Vernon’s Crim. Stats, vol. 2, p. 542, note 29, and cases cited.

We infer that the other forgeries mentioned in the bill relate to the various notes that were described in the testimony of Moore, the receiver of the bank, as having been listed and turned over to him, and those described by the witness McKinnon as having been discussed by him with the appellants in his examination of the affairs of the bank. Speaking of this discussion, he said:

“We had all the notes of the bank up there and we discussed them; had them up one by -one.”

And in this connection he identified from recollection a number of the notes described in the list referred to by witness Moore with reference to which notes the purported makers gave testimony to the effect that they were not executed by them or by their authority. This testimony was properly limited in the court’s charge, and if the question was properly raised, we cannot say that there was error in its admission. There was evidence from which the jury was authorized to form the conclusion that the various instruments mentioned were in possession of the defendants in connection with the note upon which the prosecution was founded, and that they were all put to a common use, namely, to swell the apparent assets of the bank of which the appellants were the active officers. Ham v. State, 4 Tex. App. 645; Mason v. State, 31 Tex. Cr. R. 307, 20 S. W. 564; Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 751, 66 Am. St. Rep. 808; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; and other cases cited in Branch’s Ann. P. C. p. 864, § 1412.

There were allegations asserting there were comments upon defendants’ failure to testify; that there was separation of the jury; that one of the jurors did not agree to the verdict; that there was evidence considered with reference to the character of appellants, not introduced on the trial. Three supporting affidavits were attached to the motion, one made by juror R. I-I. Red, one by juror Pyrtle Blount, and one by Eubanks, the officer in charge of the jury. Evidence was heard upon the motion, each of the 12 jurors and the officer mentioned testifying. The evidence relied on to show separation was the fact that the jurors occupied two rooms apparently in the courthouse, both of which were used for sleeping rooms, part of the jury sleeping in one, and part in the other; which rooms seem to have been across the hall from each other, and doors connecting them being open, and the jurors throughout their deliberations used the entire apartment. Also upon the fact that after the verdict had been agreed upon, written, and signed, and Eu-bank, the officer in charge, requested to advise the judge, and while they were waiting for the judge to come to the courthouse, one of the jurors, Red, assuming that the transaction was complete, went down the stairway and encountered the officer, Eubank, remarking in .effect, “We have played hell; we have written a verdict;” that the officer directed the juror to rejoin the others, which he did without contact or conversation with any other person or without any further conversation with the officer. The separation of a jury after it is impaneled and sworn to try a felony case is prohibited by statute (article 745, O. C. P.). Passing upon circumstances similar to those detailed, it has frequently been held by this court that a reversal would not result where it was shown affirmatively that there was no influence brought to bear upon the jury in consequence of the circumstance and no opportunity therefor. The purpose of the statute is to preserve the purity of the verdict, and where it is shown that a temporary separation of one of the jurors from his fellows did not and could not have affected the verdict or impartiality of the trial, a reversal is not required nor authorized. Robinson v. State, 58 Tex. Cr. R. 551, 126 S. W. 276; Watson v. State, 52 Tex. Cr. R. 87, 105 S. W. 509; Wakefield v. State, 41 Tex. 556; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Jack v. State, 26 Tex. 1; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887; Gallan v. State, 68 Tex. Cr. R. 200, 150 S. W. 1171; Webb v. State, 69 Tex. Cr. R. 413, 154 S. W. 1013; Guerrero v. State, 75 Tex. Cr. R. 558,171 S. W. 731; Lounder v. State, 46 Tex. Cr.. R. 125, 79 S. W. 552; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 544; Branch’s Ann. P. C. p. 299, and cases cited; Vernon’s An. C. C. P. p. 562, and cases cited.

The receipt of other testimony reflecting upon the character of the appellants was disproved; in fact, there was no evidence supporting it.

The intimation that the juror Red, after agreeing to the verdict, desired to re- . tract his acquiescence, was a contested issue, and one upon which the court would not have been unauthorized to have found against the appellants. It is an inquiry, however, that we think could not legitimately be made. It is a character of impeachment of the verdict which is contrary to public policy. Turner v. State, 61 Tex. Cr, R. 103,133 S. W. 1052. The juror Red claimed that he consented to the verdict believing the appellants were not guilty ; that he told the foreman he desired to change his verdict; that the foreman told him he could not do so. This, as above stated, was controverted in substance, the foreman claiming that what occurred about it was in a joking manner, the juror Red remarking while they were waiting for the judge that, if he did not come pretty soon, he would take it hack. Red said, however, that when inquired of by the court that he acquiesced in it for the reason that he wanted to go home. Similar facts were passed upon against apjpellant’si contention in Bacon's Case, 61 Tex. Cr. R. 210, 134 S. W. 690, and in Pilot’s Case, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024, and the principle controlling these cases is affirmed in Henry v. State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74; Johnson v. State, 27 Tex. 758.

On the question of alleged comment upon appellants’ failure to testify, it was claimed that such comment was made by the juror Bert McLellan and others not named. McLellan denied any- such comment. The juror Red claimed that during the deliberations and before the verdict, the juror Mc-Lellan remarked that, if the defendants were not guilty, they would have taken the stand. Most of the jurors testified that no reference to the appellants’ failure to testify was made in their presence. One juror besides Red claimed that he heard McLellan make the remark attributed to him, and one of two other jurors thought there was some reference to the fact that the appellants did not take the witness stand. The statute (article 790, C. C. P.) uses the following language :

“The failure of any defendant to testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

It has often been held to be the duty of the court to protect an accused against the use of his silence at a trial as a circumstance against him; and in compliance with this duty it has often been necessary to order a new trial. Where a defendant on trial fails to testify, it is a fact always known to the jury, and in recognition of this this court has drawn a distinction between the mere reference to the failure to testify and the consideration of it as a circumstance against him. Leslie v. State, 49 S. W. 73; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. W. 936; Veach v. State, 71 Tex. Cr. R. 181, 159 S. W. 1069; Mason v. State, 81 S. W. 718; and other cases listed on the subject in Branch’s Ann. P. O. p. 293. The cases in which reversals have been ordered on this ground have been those in which the discussion or comment upon the prisoner’s failure to testify, and its use as a circumstance against him, has been uncontroverted, as in Tate’s Case, 38 Tex. Cr. R. 265, 42 S. W. 595, and other cases listed in Branch’s Ann. P. C. p. 292, § 569, or in cases where such comment and use have been established by evidence so cogent as to impel this court to annul the finding of the trial' "ourt to the contrary., When the allegations in the motion for a new trial charging that the jury mis- ! used the accused’s failure to testify to his prejudice are controverted, and on investigation and conflicting evidence determined against him, the finding of the court is given the weight attaching to any other question of fact submitted for judicial determination. Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Adams v. State, 48 Tex. Cr. R. 452, 93 S. W. 116; Sheffield v. State, 48 Tex. Cr. R. 481, 89 S. W. 274; Douglass v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Blount v. State, 58 Tex. Cr. R. 509, 126 S. W. 570; and other cases listed in Branch’s Ann. P. C. p. 295, § 574, subd. 3.

In the instant case the inquiry upon • the controverted issue as to the misconduct of the jury was full; and while in some particulars conflict was developed as to whether there was any reference to the failure of the appellants to testify, the finding that there was none is supported, and, further, the conclusion of the court that no inhibited misuse of the defendants’ failure to testify entered into or affected the verdict is established.

On the issue as to whether J. E. Watson wrote the alleged forged note or wrote the purported signature of Stillwell thereto there was a conflict of evidence. This evidence consisted mainly in the testimony of witnesses claiming to know his signature. It was not a case depending upon the comparison of handwriting coming within article 814, O. C. P., prescribing the quantum of proof where the signature was denied under oath, hut upon direct testimony of those claiming to have personal knowledge of the handwriting, such as was used in. Hughes v. State, 59 Tex. Or. R. 294, 129 S. W. 837, and other eases on the subject cited in Jackson v. State, 193 S. W. 302. There was evidence of possession of the instrument by the appellant and his use of same bringing him into close proximity with the alleged forged note. Gaut v. State, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton’s Crim. Law, § 931; Fischl v. State, 54 Tex Cr. R. 55, 111 S. W. 410. There was a serial number on the note, No. 3822, and evidence indicating that this number was a part of the system of the bank of which appellants' were officers and managers in dealing with its bills receivable. The only direct evidence as to the execution of the instrument which we find in the record against W. R. Watson is some evidence that this serial number was in his handwriting. It is true that there were some circumstances such as his connection with the bank, his joint possession of this and other notes referred to above, claimed to have been spurious and used to swell the bank’s assets, but we regard the circumstances insufficient to support the conviction of W. R. Watson. On the other hand, we think .that the state’s evidence that appellant J. E. Watson wrote the alleged forged signature, in connection with the other facts testified to on behalf of the state, are sufficient to establish his guilt, and, this being true, the verdict of the jury'against him is conclusive, in the absence of errors in the trial, and, none having been pointed out, the judgment Of the lower court as to J. E. Watson is affirmed, and that as to W. R. Watson is reversed and remanded.

On Motion for Rehearing.

It is claimed that one of the jurors who rendered the verdict against appellant was at the time insane, and therefore an incompetent juror, and that in consequence of such insanity the verdict of the jury is void.

It appears from the motion that the knowledge of this alleged insanity of the juror was not possessed by appellant at the time of the trial and came to him after the term of the court at which he was tried had adjourned. From this it is apparent that the matter was not raised in the court below, and is not raised here by anything upon the record of the trial in the court below. Consideration of it would involve an inquiry by this court into the question of fact and its determination from evidence adduced of the sanity or insanity of the juror. This is not within the province of this court on appeal. It is confined to the record made in the court below in determining whether or not a legal trial was had. The judgment before this, court is one which in the state of the record is presumed on appeal to have been based on the verdict rendered by a lawful jury. Relief against a void judgment upon matters not contained in the record on appeal must be sought in the district court, which is equipped to determine the facts, and from its judgment upon such proceeding appeal will lie to this court.

The other questions raised in the motion for rehearing are fully considered and discussed in the original opinion.

The motion for rehearing is overruled. 
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