
    SMILEY v. STATE.
    (No. 4268.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Nov. 22, 1916.)
    1. Witnesses i&wkey;350 — Credibility.
    Testimony of a witness on cross-examination that he had been in the penitentiary was admissible to affect his credit as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. &wkey;350.J
    2. Witnesses <&wkey;77 — Disqualification — Proof.
    The oral testimony of a witness, on cross-examination, that he had been in the penitentiary, did not render him incompetent as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. &wkey;>77.]
    3. Criminal Law i&wkey;1044 — Postponement of Triai>-Disqualification of Witness.
    If the first intimation that defendant received that a witness had served a term in the penitentiary was his oral testimony to that effect on cross-examination, he should have asked postponement of the case until he could get a copy of the sentence of the witness, if he desired to do so, setting up that he had not before been aware of the fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2672, 2674, 2675; Dec. Dig. <&wkey;>1044.]
    
      4. Criminal Raw &wkey;1044 — Appeal—Reservation of Grounds of Review — Disqualification of Witness.
    Where defendant, when he first learned that a witness had been in the penitentiary by such witness’ oral testimony on cross-examination, did not ask postponement until he could get a copy of the sentence, he not having secured a copy, the facts presented on appeal are no ground for new trial.
    [Ed. Note. — For other cases, see " Criminal Law, Cent. Dig. §§ 2672, 2674, 2675; Dec. Dig. i&wkey;>1044.)
    5. Forgery <&wkey;19 — '“Attempt to Pass Fogged Instrument” — Allegation.
    Where defendant bargained for a watch, and tendered a forged check, payable to “T. B.,” in payment, and only left, taking the watch with him, when the storekeeper took the check and went to the telephone to ask its alleged maker if it was genuine, there was an “attempt” to pass the check, and it was not necessary to allege that the check had been indorsed by “T. B.” or that defendant represented that he was of that name.
    [Ed. Note. — For other eases, see Forgery, Dec. Dig. &wkey;>19.
    For other definitions, see Words and Phrases, First and Second Series, Attempt to Commit Crime.]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Columbus Smiley was convicted of attempt.ing to pass a forged instrument, and he appeals.
    Judgment affirmed.
    Web Maddox and Mercer, Wall & Rouer, all of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of attempting to pass a forged instrument, and his punishment assessed at two years’ confinement in the state penitentiary.

There are but three bills of exception in the record — two of them relating to the witness Arthur Burks, who testified he forged the check, that appellant saw him do so and agreed to get it cashed, when they would divide the proceeds. Joe Brodkey testified appellant came to his store and attempted to pass the check on him.

On cross-examination of Arthur Burks, appellant asked him if he had ever been to the penitentiary, and the witness answered that he had, and was sentenced in McLennan county. Appellant then moved to exclude the testimony of Burks, on the ground that he was an incompetent witness. All the proof offered was the statement of Burks on cross-examination. This testimony was admissible to affect his credit as a witness, but such oral testimony would not render him incompetent as a witness. This question has been so thoroughly discussed by this court in Bratton v. State, 34 Tex. Cr. R. 479, 31 S. W. 379, White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72, and Moore v. State, 39 Tex. Cr. R. 266, 45 S. W. 809, we deem it unnecessary to do so again. If this was the first intimation that appellant received that Burks had served a term in the penitentiary, he should then have asked a postponement of the case until he could send to Waco and get a copy of the sentence, if he desired to do so, setting up the fact that he had not prior to this time been aware of such fact. As he did not then do so, it presents no ground for a new trial, when even at that late day he had not secured a copy of the sentence.

The only other question presented is that, as the check appellant sought to pass on Joe Brodkey was payable to “Tom Brown, or order,” it ought to have been alleged that the check had been indorsed by Tom Brown or that appellant represented himself to be named Tom Brown. As appellant bargained for a watch and tendered the check 'in payment, and only left when Brodkey took the check and went to the telephone to ask the alleged maker of the check if it was genuine, taking with him the watch he had been bargaining for, it was an “attempt to pass” the check, and this was the offense with which he was charged.

The judgment is affirmed. 
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