
    YOUNG v. STATE.
    (No. 7843.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law <&wkey;4IO, 730(1) — Argument and evidence that accused’s attorney repaid money represented by forged check to hank held improperly admitted.
    The question of the forger’s identity being sharply controverted, and no comparison of handwriting being made, the court .erred in receiving evidence that defendant’s attorney had returned the amount of money represented by the check to the bank, and in refusing an instruction to disregard prosecutor’s argument stressing its importance, since the acts of third parties are not chargeable to accused, unless done under his express or implied authority.
    2. Criminal law <@=3410 — Accused held not to impliedly authorize his' attorney to repay money on forged check.
    The act of defendant’s attorney in reimbursing the bank the amount it had paid on the alleged forged check did not come within his authority as attorney for accused, in the absence of proof of express authority.
    3. Witnesses <&wkey;289 — Cross-examination by defense attorney on immaterial point did not authorize further inquiry by state.
    The action of accused’s attorney in cross-examining a witness as to whether he had been injured by cashing a forged check, and his answer that he was reimbursed, did not authorize the state to pursue the inquiry and show that attorney for accused had paid the money.
    4. Forgery <&wkey;l4 — Not necessary to prove that bank cashing check was injured thereby.
    It was not necessary to show that the bank cashing the check was injured by the forgery.
    5.Forgery <&wkey;4 — Law requires proof of forgery and intent to injure.
    All that the law requires is proof of the forgery and the intent to injure.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    WSUie Young was convicted of forgery, and be appeals.
    Reversed and remanded.
    Davis, Jackson & Fryer, of El Paso, and Wm. Blakeslee, of Austin, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is forgery; punishment fixed at confinement in the penitentiary for a period of two years.

The instrument forged was a check on the City National Bank, to the order of John Papas, for $25, signed “Pete Mitchell, Manhattan Café.” The check was indorsed “John Papas,” and was paid by the bank to the appellant, and by him indorsed “John Papas.” Such was the testimony of the witness Donahue on direct examination. The check was introduced in evidence, and Mitchell denied having signed it. It was shown upon the trial that the lawyer who acted as counsel for the appellant on the trial had returned to the bank the amount of money which had been paid on the.check.

Objection was urged to the receipt of* this testimony. This action of the lawyer was susceptible1 of appropriation by the jury as an admission by the appellant that he was connected with the forgery. His identity as the person who passed the alleged forged check was a sharply controverted issue. The witness who identified the appellant had previously identified another person. There was no comparison of the handwriting identifying the indorsement of the check as that of the appellant. The rush of business in which the cheek was presented and paid gives room for mistake. In the argument of the case, the prosecution stressed'the importance of the return of the money by the appellant’s attorney as an item of 'identification. A request was made that the court instruct the jury to disregard this argument. In receiving the evidence, and in refusing to instruct the jury to disregard the argument mentioned, it is believed that the learned trial judge fell into error. The acts of third parties are not chargeable to the accused on trial, unless it appear that they were done under express or implied authority from the accused. The act in question, that of reimbursing the bank, would not, by implication, come within the scope of the authority of an attorney employed to secure the rights of the accused in a criminal case, and no proof of express authority was made or attempted. Branch’s Crim. Law, § 862, and cases listed; also Sorell v. State, 74 Tex. Cr. R. 100, 167 S. W. 359; Nader v. State, 86 Tex. Cr. R. 425, 219 S. W. 474.

The action of the appellant’s attorney in making inquiry on cross-examination of the witness Donahue if he had lost anything by the transaction, and the reply of Donahue that he had been reimbursed, would not give license to the state to pursue the inquiry and show that his reimbursement had been through the payment of the money by the appellant’s attorney. Whether there had been reimbursement was an immaterial inquiry, unless shown to have been done by the appellant through his agent. It was not necessary to show that the bank was injured by the forgery. All that the law required was that the forgery be proved, and that there be an intent to injure. If objection had been made by state’s counsel to the appellant’s inquiry of Donahue mentioned or his reply, it would have doubtless been excluded, because it related to an immaterial issue. By his silent consent to the proof of an immaterial fact, state’s counsel did not acquire the right to introduce additional testimony of the same nature. See Wigmore on Evidence, vol. 2, § 1007; Brent v. State (Tex. Cr. App.) 252 S. W. 501.

The other questions raised are not likely to oecur upon another trial.

Because of the error pointed out, the judgment is reversed, and the cause remanded. 
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