
    HOWARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1911.
    On Motion for Rehearing, Jan. 24, 1(>12.)
    1. Criminal Law (§ 1111) — Appeal—Bill op Exceptions — Approval by Court.
    Where, in a criminal prosecution, the court refused - to approve a bill of exceptions containing a requested instruction, on the ground that it did not remember that any such charge was asked and refused, the appellate court will accept the statement of the trial court as to the matter.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2894r-2896; 1111.*] see Criminal Dec. Dig. §
    2. Criminal Law (§ 1091) — Bill op Exceptions.
    In a prosecution for forgery, a bill of ex-, ceptions to the, admission of testimony, which merely set out the question and answer and noted the objection thereto, with the reason for the objection as presented in the trial court, was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1091.*]
    3. Witnesses (§ 242) — Trial—Examination.
    Where, in a prosecution for forgery, the father of accused was an unwilling witness for the state, and the court was satisfied that he was evading questions put to him, it was proper to permit him to be questioned as to whether he had a conversation with the officers of a bank at a certain time for the purpose of refreshing his recollection as to the time he had notified the defendant not to draw any more cheeks on his account.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 846; Dec. Dig. § 242.]
    4. Criminal Law (§ 448) — Evidence — Opinion.
    In a prosecution for forgery, a question whether a witness believed that the defendant intended to defraud Mm when he drew certain checks was properly refused as calling for an ■ opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§• 1035-1051; Dec. Dig. § 448.]
    5. Criminal Law (§ 1091) — Appeal—Bill of Exceptions.
    A bill of exceptions to the action of the court in a prosecution for forgery in refusing to allow a witness to answer as to whether he believed accused intended to defraud him, giving as a reason for the propriety of the answer which would have been elicited that the indictment charged “that the forgery was done to injure and defraud the defendant” (meaning the witness) is insufficient, where the indictment merely charged that the forgery was intended to “injure and defraud.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2943; Dec. Dig. § 1091.]
    6. Criminal Law (§ 1091) —Appeal—Bill op Exceptions.
    In a prosecution for forgery, a bill of exceptions to the introduction of checks in evidence, which merely observes that the defendant objected to their admission because they were not connected with and threw no light on the transaction, because the state’s witness did not remember whether at the time the checks purported to have been given by his son he had forbade him to use his name, and because they were inadmissible as prejudicial to the rights of the defendant, is wholly insufficient to present any mattér attempted to be raised.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2943; Dec. Dig. § 1091.]
    7. Criminal Law (§ 371) — Forgery—Admissibility of Other Checks.
    In a prosecution for forgery of a check, other checks were properly admitted in evidence to show intent, where they were shown' to have been made -within a few days of the check charged to have been forged and their effect was properly limited by the court’s charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    8. Forgery (§ 34) — Elements of Offense-Intent.
    Where, though an indictment for forgery charges that the offense was “with intent to injure and defraud,” a conviction may be had upon a showing that the offense was committed with intent either to injure or defraud, under Pen. Code 1895, art. 530, defining forgery as committed “with intent to injure or defraud,” and Code Cr. Proe. 1895, art. 461, which provides that when an offense may be committed with different intents such intents may be alleged in the same count in the alternative.
    [Ed. Note. — Eor other cases, see Forgery, Cent. Dig. § 91; Dec. Dig. § 34.]
    9. Criminal Law (§ 1064) — Appeal—Motion fob New Tbiai^Sufficiency of Objections.
    A ground of motion for a new trial in a criminal prosecution that a paragraph of the court’s charge was vague, indefinite, and unintelligible, and was calculated to and did mislead the jury, is too general to require consideration on appeal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    10. Cbiminal Law (§ 1172) — Appeal— Habmless Ebeoe.
    Where the indictment contained counts of forgery and passing a forged instrument, the submission of the issue of forgery to the jury is not erroneous, where the court also submitted the passing of the forged 'instrument, there being evidence to support both charges, and the jury in assessing the penalty fixed the lowest that could be fixed for either count.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3154-3163; Dec. Dig. § 1172.]
    11. Forgery (§ 48) — Teiai^-Insteuctions.
    Where, in a prosecution for forgery, the defendant set up authority from his father to sign the check in question, an instruction that if the jury believed or had a reasonable doubt as to the existence of such authority, or if they believed that the father did not authorize the defendant to sign his name to the check, but that the defendant believed that he had such authority, they should acquit the defendant,, fully and aptly presents the defense.
    [Ed. Note. — For other cases, see Forgery, Dee. Dig. § 48.]
    12. Criminal Law (§ 1172*) — Appeal — Harmless Eeeoe — Instructions.
    A defendant, in a prosecution for forgery, cannot complain that an instruction submitting his defense was on the weight of the evidence, where, so far as it was so, it was in his favor.
    [Ed. Note. — For other cases,1 see Criminal Law, Cent. Dig. §§ 3154-3163; Dec. Dig. § 1172.]
    13. Criminal Law (§ 673) — Trial —Instructions — Limiting Effect of Evidence.
    Where, in a prosecution for forgery, other checks were admitted to show intent, an instruction limiting the effect of such testimony to the intent was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1876; Dec. Dig. § 673.]
    14. Criminal Law (§ 1090) — Bill of Exceptions — Necessity.
    A court on appeal will not review the act of the lower court in lecturing a witness when the question is not presented by a bill of exceptions. "
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    On Motion For Rehearing.
    15. Criminal Law (§§ 763, 764) — Trial-Instructions.
    In a prosecution for forgery, an instruction that the payment of other unauthorized checks by the father of defendant would not be a defense to the present action, if the jury believed that the present check was unauthorized, is a correct statement of law and is not improper as a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    16. Criminal Law (§ 1090) — Bill of .Exceptions — Necessity.
    The court on appeal in a criminal prosecution will not consider matter claimed as error, where not presented by a bill of exceptions, though sworn to in a motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § 1090.] •
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    N. J. Howard was convicted of forgery and passing a forged check, and appeals.
    Affirmed.
    Odell & Johnson and J. P. Word,-,for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am.' Dig. Key No. Series & Rep’r indexes
    
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   PRENDERGAST, J.

The appellant was indicted for forging a cheek on a bank for $10 by signing his father’s name thereto and passing it to John Jimerson, alleged to have occurred on or about February 2, 1907. The trial was had September 19, 1910. He was convicted, and the jury assessed his penalty at two years in the penitentiary.

It is unnecessary to give a detailed statement of the facts. The facts show,. briefly stated, that in the fall of 1906, and January, 1907, J. S. Howard, the father of the appellant, had an account in the First National Bank of Meridian, Tex.; that for a short time during the fall of 1906 the father had given permission to the appellant to draw some small checks on the bank and sign his name thereto, but in November, 1906, finding that the appellant had drawn more checks and for an aggregate of a larger sum than he had intended or anticipated, he saw him about the first of December, 19Ó6, and instructed him to draw no more checks and sign his name thereto, and about the same time he notified the bank not to pay any of the checks drawn in his name'by the appellant.

The record shows that the appellant’s father, soon after the drawing of the check-charged to be forged in this case, went before tbe grand jury and bad bis son indicted for forgery and testified at tbe time fully tbe facts; that about this same time tbe appellant found out that he was to be or was being proceeded against for forgery, fled tbe country, and was gone and could not be found by tbe officers for about three years or more after the indictment. In the meantime, and before the appellant was arrested, his father, who was used by the state as the main witness on the trial, repented of the prosecution of his son and was a hostile witness to the state on the trial, so much so that the court permitted the state to ask him leading questions and had the stenographer, in making out the statement of facts, to make a complete transcript by question and answer of his testimony. We have carefully gone over, not only the testimony of appellant’s father, but all of the other testimony, and it shows clearly that, before this check was drawn and passed on Jimerson by the appellant, his father had expressly notified him that he withdrew any authority of his son to draw any check on the bank and sign his name thereto and forbade his doing so, and that he also notified the bank of this fact and forbade them paying any such check drawn by his son; that notwithstanding this the appellant, about tbe 1st of February, 1907, drew not only tbe check with which he is charged to have forged in this case, but several others along about the same time and negotiated them to other parties which, when presented to the bank, were refused payment under the instructions of his father; and that his father at that time claimed that this check and the others were forgeries and that his son had no power or authority to draw them or negotiate them and that he had done so against his express notice and prohibition. The evidence is clearly sufficient and entirely satisfactory to show the appellant’s guilt, and, while the circumstance of the father having to testify against his son excites our sympathy and regret, yet this cannot prevent us from deciding tbe case on its merits as if no such state of facts was shown.

The record shows that there was an attempt to procure a bill from the court upon the refusal of the court to give to the jury a special charge. Such special charge, does not occur otherwise in the record than as attempted to be saved by this bill of exceptions. The court refused to approve this bill with this requested charge in it, because he had no recollection that any such charge was asked and refused; that he gave one charge requested by tbe appellant copied into his general charge. So that we must take it that no such charge was asked and refused which appellant can now assign.

Appellant’s next bill, after the style, term of court, and the court, is as follows: “Be it remembered that upon tbe trial of this cause, and while the state’s witness J. S. Howard was on the stand as a witness for the state and being interrogated by the county attorney upon his direct examination, he was asked the following question and made the following answer: Q. Do you remember having a conversation in the latter part of 1906 with the bankers, Tidwell and Cochran, over here in this bank, with reference to cashing checks on your account, given by your son, N. J. Howard, signing your name to it? A. I had a conversation, but I could not say what year it was. To which question and the answer tbe defendant then and there objected because it was in the absence of the defendant and could not bind him. The court overruled said objection, and tbe witness was permitted to testify as above set out, to all of which he then and there excepted in open court and here and now tenders this his bill of exceptions and asks that the same be approved by the court and filed herein as a part of the record in this case, which is accordingly done.” This is the bill in full. In allowing it the court made the following explanation: “This bill of exceptions is allowed with the following explanation and qualifications: The witness J. S. Howard was shown to be an unwilling witness for the state and unfriendly to the state and to be friendly to the defendant and was his father, and the court was satisfied from the examination of said witness and his answers to tbe questions propounded to him by the county attorney that this witness was evading questions. The court permitted the witness to be asked the question whether he had a conversation with tbe bankers or not, but not what the conversation was. The county attorney was attempting to refresh the recollection of the witness as to the time when the witness had notified the defendant not to draw any more checks on his account. The only objection made by the defendant at the time was that it was in the absence of the defendant and could not bind him. The further objection, as set out in this bill, ‘because it was prejudicial to the rights of the defendant,’ was not made.”

This court has been under the necessity, recently, of again calling attention to the uniform decisions of this court holding that such bills as this are entirely insufficient to require or authorize the court to consider them or pass upon the questions attempted to be raised. This bill, tested by these rules, is clearly insufficient. But even if we could consider it in any phase of the case, as qualified by the judge in allowing the same, it shows no error whatever that would justify this court in reversing this ease. See Douglass v. State, 58 Tex. Cr. R. 124, 124 S. W. 933, 137 Am. St. Rep. 930; Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125, and cases cited therein; Patterson v. State, 140 S. W. 1128, recently decided, but not yet officially reported. Also, section 857 of White’s C. C. P., p. 557, where a large number of the cases are collated and the rules laid down covering the preparation of bills of exceptions.

The next bill complains of the action of the court in refusing to permit the witness J. S. Howard, appellant’s father, to answer this question by his attorney: “Tell that jury, knowing Nigel Howard as you know him, and as long as you have known him, and the intimacy existing between you and him, if in your judgment he intended to defraud you at the time he drew any of these checks.” The state objected to this question, because it called for the opinion of the witness and did not call for a fact. The court sustained the objection and refused to permit the witness to testify. If he had been permitted to have testified, he would have answered that he did not so believe. It is claimed in this bill that this testimony was admissible on cross-examination “because the indictment charged that the forgery was done to injure and defraud the defendant.” It will be seen that this bill is also wholly insufficient. The appellant is mistaken when he claims that the indictment charged that the forgery was done to injure and defraud the defendant — meaning, no doubt, instead of the defendant, the loitness, appellant’s father. Even he is mistaken in this because the indictment does not charge whom the forgery was intended to injure, but simply “to injure and defraud” as the statute prescribes. In any event, 'the court, correctly refused to permit this witness to give his opinion as called for by this question.

The only other bill in the record simply shows: “That the county attorney offered in evidence two other cheeks — one known as the Alexander check and one known as the Snell check — to the introduction of which the defendant objected, because they throw no light on the transaction, are not connected with it, and the state’s witness does not remember whether or not, at the time these checks were purported to have been given by his son, he had forbade the defendant at that time from using his name. Therefore they were not admissible for any purpose and are prejudicial to the rights of the defendant and throw no light on this transaction.” The court overruled the objections and admitted the checks in evidence. In explanation in allowing the bill, the court says: “The court permitted the introduction of the Alexander and Snell checks in evidence because they bore date the same month and year as the alleged forged instrument set out in the indictment in this ease, and only a few days apart. This evidence was admitted on the question of the intent of the defendant and was so limited in the charge of the court. See paragraph 7.” This bill is wholly insufficient to present any matter attempted to be raised so that this court can intelligently pass upon it. Besides, as qualified by the explanation of the court,. the testimony was admissible.

The first two grounds of appellant’s motion for a new trial complain of the first two paragraphs of the court’s charge, the first, stating that appellant was indicted for forgery of the instrument described in the indictment “with intent to defraud or injure,” and in the second paragraph in defining forgery as prescribed by the statute, and in again using the words disjunctively “with intent to injure or defraud,” claiming that, as the defendant had been indicted ,charged- with the forgery of the instrument “with intent to injure and defraud,” reversible error was committed, .There is nothing in this contention. While the indictment properly charges the forgery of the instrament “with intent to injure and defraud,” the appellant could have been convicted by showing that he committed a forgery “with intent to injure or defraud” as the statute so prescribes. P. C. art. 530; C. C. P. art. 461; Berliner v. State, 6 Tex. App. 183.

Appellant’s next ground of the motion for new trial complains of the fifth paragraph of the court’s charge, quoting it, “because the same is vague, indefinite, and unintelligible, and was calculated to and did mislead the jury.” This objection to the charge of the court is too general to require consideration; but, further in this ground of the motion, the appellant contends that the undisputed evidence disclosed the passing of the instrument by appellant to the prosecutor, Jimerson, and that the court, instead of submitting forgery, should have submitted the passing of a forged instrument, claiming that the law fixed a less penalty for passing a forged instrument than for forging it, and contends that the court should have submitted the offense of passing a forged instrument, instead of forging it, as the indictment presented each of these counts. No complaint is made that the charge is incorrect in submitting the question of forgery. The evidence, in our opinion, without doubt clearly establishes both forgery and the passing of a forged instrument. As the jury, in assessing the penalty, fixed the lowest, two years, that could have been fixed under the statute for either, no error was committed by the court, if at all, on this point. The court in his charge did submit both counts of the indictment, forgery and passing a forged instrument, correctly and aptly.

By the next ground of the motion the appellant complains in very general language of the sixth paragraph of the court’s charge, claiming “that it is not the law applicable to this case, and that it is confusing and misleading, and that it was on the weight of the evidence, and that it undertakes to couple the defense with the affirmative submission of the state’s case.” And the fifth ground again complains “that the court erred in not affirmatively submitting appellant’s defense in a separate paragraph of his charge to the jury and in confusing his defense with an affirmative submission of the state’s case.” This, it will be seen, is very general in the specifications of complaint.

The record shows that the appellant’s defense was that he had the authority of his father to sign his name to checks and' procure money from the bank in that way. The court, after aptly submitting the passing of the forged instrument in the fifth 'subdivision of the charge, in the first paragraph of the sixth subdivision, correctly and aptly submitted to the jury the issue of the forgery of the instrument by appellant. Then in a separate and distinct paragraph of the sixth subdivision charged the jury as follows: “On the other hand, if you believe from the evidence that the defendant, N. J. Howard, had been authorized by his father, J. S. Howard, to sign checks and draw money from the bank on said cheeks; or if you believe from the evidence that J. S. Howard did not authorize the defendant to sign his name to' the check on the bank, but you further believe from the evidence that the defendant at the time he signed J. S. Howard’s hame to said check, if he did do so, believed that his father, J. S. Howard, had authorized him to do sos; or if you have a reasonable doubt of either fhct—then you will acquit the defendant. But if you believe from the evidence beyond a reasonable doubt that J. S. Howard had authorized the defendant to sign his name to a cheek or checks theretofore, but that afterwards he withdrew his permission to do so and notified the defendant that he must draw no more checks on him,' then said defendant would not be justified or excused for thereafter signing the name of J. S. Howard. And you are further instructed that the mere fact that J. S. Howard had theretofore paid off checks on him by defendant, that he had not authorized the defendant to sign, would not alone be a defense in this case if the jury believed from the evidence beyond a reasonable doubt that J. S. Howard did not authorize the defendant to sign the check set out in the indictment, and known as the John Jimerson check.” In our opinion this part of the charge, quoted, presented the appellant’s defense in every phase that he could claim it and really more favorably than he was entitled to under the law; that if it is upon the weight of the testimony, it is in the favor of the appellant.instead of against him; but, on the whole, we believe that it was a very apt charge in appellant’s favor applicable to the facts and as favorable, or more favorable, to the appellant than he could properly claim.

There was no error by the court in limiting the effect of any other checks introduced in evidence other than the one shown in the indictment, as charged by the indict„ment, to have been forged and passed as a forgery. It was entirely proper for the court to limit the other checks introduced to the intent of the appellant in signing and passing the check he did sign and pass copied in the indictment.

All the other grounds of the appellant’s motion for new trial are to the refusal of requested charges and the admission of evidence, and of the action of the court in the claimed lecture by the court of the appellant’s father, J. S. Howard, who was an adverse witness to the state. As none of these questions are properly presented by bills of exceptions, we cannot consider them.

There being no error in the judgment, it is in all things affirmed.

On Motion for Rehearing.

The appellant, in his motion for rehearing, has presented in a very clear and forcible way his contention that the latter sentence in that portion of the sixth subdivision of the court’s charge is on the weight of the evidence, and injurious to appellant, which should result in the reversal of the judgment. We hav.e again carefully gone over the record and considered this question.

It is unnecessary to again copy that portion of the sixth subdivision of the court’s charge submitting appellant’s defense, the latter sentence of which appellant complains of as on the weight of the evidence, because the whole of that portion of the charge is copied in the original opinion. As we see it, by this charge the court tells the jury very plainly, in effect, that if appellant had authority from his father to sign the cheek to acquit him; or even if he had no such authority, but believed he had, to acquit him; or if they had a reasonable doubt of either of these facts to acquit him; but if his father did not authorize him to sign the check, the mere fact that he paid other unauthorized checks would be no defense. In other words, as to this latter part complained of, the court distinctly tells the jury, in effect, if appellant forged two other checks, but his father paid them off and did not prosecute him therefor, that mere fact would be no defense if he forged this check. In our opinion this was a correct enunciation of the law peculiarly applicable to the facts of this case and was not a charge on the weight of the testimony.

As stated in the original opinion herein, the fact that the father had to testify against his son, and upon his testimony his son was convicted, excites our sympathy and regret. We, like the jury, must follow the law, and, seeing it as we do, we cannot reverse this case.

The only other question presented by appellant is: He contends that, because the complaint of the court’s action in lecturing appellant’s father is sworn to 'by him in his motion for new trial, this court should consider it, even though the matter is not presented by bill of exceptions.

This is contrary to the long-established and well-known practice of this court, which is that it cannot and will not consider such questions unless authenticated by a bill of exceptions approved by the judge.

The motion for rehearing will therefore be overruled.  