
    WILSON v. STATE.
    (No. 6979.)
    (Court of Criminal Appeals of Texas.
    May 31, 1922.
    Rehearing Denied June 23, 1922.)
    1. Judges <&wkey;47 (I) — Refusal of trial judge to recuse himself on ground of prejudice held proper.
    Under Code Cr. Proe. 1911, art. 617, providing that a judge or justice of the peace shall not sit in a case in which he is the party injured, or where he has been of counsel for the state or accused, or where the accused party may be connected with him by consanguinity or affinity within the third degree, in prosecution for forgery, refusal of a trial judge to recuse himself as a judge because his name was on the indictment as a witness and because the accused stated that he would call the judge as a witness, in view of the fact that he was not called by either the state or the accused, was not error.
    2. Criminal law &wkey;603(2), 1099(11) — Verbal motion for continuance held not according to statute; statement not certified to by judge not considered.
    In prosecution for forgery, defendant’s motion for postponement on account of absence of witnesses did not comply with Code Or. Proe.' 1911, art. 608, where not made under path and not stating the facts expected to be proved by the witnesses, and defendant’s statement that he had been deprived of the privilege of subpoenaing his witnesses without any fault or negligence on his part, not certified to by the trial court as a fact, cannot be considered on appeal.
    3. Criminal law &wkey;>371(5) — Admission of defendant’s false representations by which he obtained a loan and gave a forged check in payment held proper.
    In prosecution for forgery, where defendant obtained a loan by false representations and gave a forged check in payment, testimony of one to whom defendant had negotiated the fox'ged check as to defendant’s representations made at the time the check was signed was properly admitted as tending to show fraudulent intent at the time of executing the check.
    4. Criminal law <&wkey;374 — Evidence of false representations of defendant held sufficient to show that he had no authority to sign name to a check.
    In a prosecution for forgery, where defendant obtained a loan by false representations and gave a forged check in payment, the fact that defendant made false representations as to a
    
      broken-down automobile and falsely represented that he was a schoolmate of the brother of one to whom’he negotiated a check was sufficient evidence to show that defendant' did not have authority from any one by the name of the reputed drawer of the check to sign it.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge. •
    H. B. Wilson was convicted of forgery and of passing a forged check, and he appeals.
    Affirmed.
    Geo. W.- Dayton, H. M. Myers, and W. Ei Myres, all of Fort Worth, for appellant.
    J'esse M. Brown, Cr. D'ist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was indicted, charged in the first count with having forged a cheek upon the First National Bank of Wichita Falls, payable to Albert C. Martin, for the sum of $2.40, signing the name of E. W. Wilson thereto, and in the second count with having passed the said instrument to Albert 0. Martin. Both counts were submitted to the jury, and upon a general verdict of guilty appellant was condemned to the penitentiary for a term of two years.

On August 22, 1921, appellant appeared in the office of Albert C. Martin in Fort Worth and inquired for Jesse Martin, a brother of Albert C. Martin. He was directed by Albert C. Martin where his brother could probably be found. After being gone a short time he returned, stating that he had not found Jesse Martin. He represented to Albert C. Martin that he (appellant) and Jesse Martin had been in school together; that appellant had a ear broken down near Handley and needed two inner tubes; that he had the money to pay for one and needed $2.40 to pay for the other; that he had wired to Wichita Falls for the money, but was afraid to ■ leave the car until he could get a reply. Upon these representations Albert C. Martin let him have $2.40, appellant executing the check heretofore mentioned. As appellant left the office he told Martin if he heard from the wire he would call back and see him. In a few days the check was returned unpaid. It developed upon the trial that appellant’s name was S. B. Wilson and not JES. W. Wilson; that Jesse Martin had not gone to school with him and did not even know him. No evidence was introduced by appellant showing that he had authority to sign the name of E. W. Wilson to the check or that any such person existed, but evidence was offered to the effect that no one by the name of E. W. Wilson was known to the witnesses in and about Fort Worth, where the transaction occurred.

Appellant had no attorney, but undertook to represent himself upon the trial, and for this reason was permitted to proceed in a somewhat irregular way, as appears from the record. He made a verbal suggestion undertaking to disqualify the trial judge. It appears from the proceedings under such suggestion that the name of the trial judge appeared upon the back of the indictment as a witness, and also that he had been summoned as a witness. It further appears, however, that he knew nothing whatever about the facts in the case. During the proceedings appellant said it had been rumored that the judge himself had been defrauded by appellant, to which the court replied that the only thing that he knew about appellant was that he had made some representations to him that had afterwards been found to be untrue, but that he knew nothing about the facts in the case and had never seen the cheek in question; that he entertained no prejudice against appellant and had lost no money by the transaction to which appellant alluded; whereupon appellant said -he would himself desire to use the judge as a witness, to which the judge replied that he would pass upon that question when they reached it. The judge was never called by the state or appellant to testify. Article 617, O. O. P., provides:

“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the state or the accused, or where the accused party may be connected with him by consanguinity or affinity'within the third degree.”

Nothing appears in the record which brings the judge in the instant case within any of the disqualifications in the article quoted. We have been unable to discover from the record any reason that would have made it proper for the judge to recuse himself.

Appellant made a verbal motion for a postponement in which he stated there were three witnesses which he desired to secure to testify in his behalf. The application in no respect complies with article 608, O. O. P., relative to application for continuance. It was not made under oath, and it nowhere states what facts were expected to be proved by the witnesses. Appellant’s statement that he had been deprived of the privilege of subpoenaing his witnesses without any fault or negligence on his part is not verified in any way, and therefore can receive no consideration by us. It is only a ground of objection, not certified to by the trial court as a fact.

While Albert C. Martin was testifying appellant objected to him detailing what conversation appellant had with him and the representations made to him by appellant at the time the check was signed, on the ground that it had no bearing upon the check in question and was immaterial. This testimony was clearly admissible, as it devolved upon the state to show fraudulent intent upon appellant’s part at the time he executed the check. Most of the representations which he made were shown to have been false, and proof of these facts were available to the state as bearing upon the' question of intent, and to support the state’s contention that E. W. Wilson was a fictitious person.

Bill of exception No. 5 contains practically all of the testimony of Albert 0. Martin. The only ground of objection stated in the bill is that the state failed to prove that appellant had ho authority to sign the cheek. This is merely a ground of objection and is not a certificate of the trial court that the state had failed* to make such proof. Appellant did not testify himself, and there was no proof offered by him that he had the authority to sign the name of E. W. Wilson to the instrument. His false representations as to the broken-down ear and that he was a schoolmate of Jesse Martin were admissible for the purpose of showing the fraudulent intent of appellant, and, we think, were sufficiently strong circumstances to show that he did not have authority from any one by the name of E. W. Wilson to sign that name to the check.

Appellant’s sixth bill of exception is reserved to the action of the court in overruling the motion for new trial. The motion is simply a formal one urging that the verdict was contrary to the law and the evidence. Appellant admitted upon the trial that his name was S. B. Wilson, and the other facts heretofore recited by us support the verdict.

Finding no error in the record which would call for a reversal, the judgment of the trial court is affirmed.  