
    JACKSON v. STATE.
    (No. 4376.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.)
    1. Criminal Law <&wkey;494 — Evidence — Comparison of Handwriting.
    Under Code Cr. Proc. 1911, art. 814, authorizing evidence of handwriting by comparison, and declaring that proof by comparison only shall not be sufficient to establish the handwriting of one who denies his signature under oath, one charged with forgery of a check cannot be convicted on proof by comparison of handwriting alone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1081.]
    2. Criminal Law &wkey;448(2) — Opinion Evidence — Primary Evidence — Handwriting.
    Testimony that handwriting is defendant’s by one familiar with his handwriting has the status of primary evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1036.]
    3. Forgery <&wkey;40 — Evidence oe Passing Check — Admissibility.
    In a prosecution for forgery, passing the forged cheek is a circumstance admissible against defendant.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 113.]
    4. Forgery <&wkey;40 — Direct Evidence — Passing op Forged Instrument.
    Passing of a forged check brings defendant in close proximity to the forgery and is direct evidence.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 113.]
    
      5. Forgery ' <&wkey;>44[2) — Evidence — Sufficiency.
    In a prosecution for forgery, evidence of handwriting by comparison held sufficiently corroborated by other evidence to sustain a conviction.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 117%, 118.]
    Appeal from District Court, Red River County; B. H. Denton, Judge.
    Tom Jackson was convicted of forgery, and he appeals.
    Affirmed.
    Travis T. Thompson, of Clarksville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for and convicted of forgery. A reversal is sought only upon the proposition that the proof of forgery rests alone upon the comparison of handwriting, and is consequently insufficient to support a conviction.

Article 814, C. C. P., is as follows:

“It is competent in every case to give evidence of handwriting by comparison, made by experts or by the jury; but proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”

Appellant was charged with the forgery of the name of A. E. Schraeder to a check for $25, drawn on the First National Bank of Annona, dated December 10,1915. He denied the forgery under oath.

If the proof of appellant’s guilt is by comparison of handwriting alone, his contention must he sustained. Spicer v. State, 52 Tex. Cr. R. 177, 105 S. W. 813.

If the evidence discloses other testimony supplementing that of experts proving the handwriting, and the additional testimony sufficiently corroborates them, the conviction under the rule in this state will be sustained. Raines v. State, 56 Tex. Or. R. 94, 119 S. W. 93; Hughes v. State, 59 Tex. Cr. R. 294, 129 S. W. 837; Batte v. State, 57 Tex. Cr. R. 125, 122 S. W. 562. In the last-named case this rule is recognized both in the majority and the dissenting opinions. In the latter, however, it was held that the circumstances of that case did not sufficiently corroborate the testimony of the experts proving the forgery by comparison of handwriting. The evidence against appellant in this case, in our opinion, is stronger than that in any of the cases mentioned.

Checks and letters of the appellant to which his signatures were admitted were introduced in evidence, as were also cheeks bearing the proved signature of A. E. Schraeder, and there was expert testimony to the effect that the alleged forged instrument was not in the handwriting of Schraeder, but was apparently in the handwriting of appellant. There was testimony of a nonexpert witness, Mrs. McQuestar, to facts showing familiarity with the handwriting of both Schraeder and appellant up to the date of the instrument in question, and she testified that this instrument was not in the handwriting of Schraeder, but was' in that of appellant. Similar testimony was used in the Hughes Case, 59 Tex. Cr. R. 294, 129 S. W. 837, Haynie v. State, 2 Tex. App. 168, Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315, Long v. State, 10 Tex. App. 186, Ferguson v. State, 61 Tex. Cf. R. 152, 136 S. W. 465, Grooms v. State, 40 Tex. Cr. R. 331, 50 S. W. 370, Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206, and Barber v. State, 64 Tex. Cr. R. 101, 142 S. W. 577, and discussed in a note, 63 L. R. A. 968. Mr. Wharton, in his work on Criminal Evidence (section 551), gives testimony of this character the status of primary evidence.

It was conceded that the appellant passed the cheek on the day of its date, December 10, 1915, or the next day obtaining $25 in 25-cent pieces from the First National Bank of Avery, in which bank Schraeder had no account, and that when, on the 13th of December, the check was presented to the First National Bank of Annona, on which it was drawn, payment was refused on the ground that it did not bear Schraeder’s signature.

The check was drawn on Friday, and on the Monday following, December 12th, Schraeder was killed. He was a country storekeeper and farmer. Appellant was a school-teacher, and boarded with Schraeder. They had a settlement on the 9th of December, showing a balance in favor of Schraeder of $16.70, for which appellant gave his check, the payment of which was refused, appellant explaining that he gave the check on the wrong bank by failing to change the printing on the check used.

Passing the forged check was a circumstance admissible against appellant. Fische v. State, 54 Tex. Cr. R. 57, 111 S. W. 410; Branch, Ann. P. C. p. 864. Such testimony when it brings appellant in close proximity to the forgery is regarded as direct evidence. Gaut v. State, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton’s Crim. Law, § 931.

Schraeder was shown to have been a careful business man, keeping a strict account with his bank and keeping stubs of all of his checks. He compared these stubs with his bank account the day before he was killed, after the check in question was passed. He made a memorandum on the stub showing that he had brought his comparison to a time subsequent to the issuance of the check. There was direct testimony that the $25 check was not on the stubs, and not taken into account in the comparison. There was a page of the stubs torn out of the check book covering the date of the check, and there were circumstances showing appellant’s proximity to the cheek book.

Appellant gave conflicting accounts of the status of his affairs with Schraeder and the reason for Schraeder giving him the cheek. He claimed that Schraeder wrote the check, and when he gave it to him he was in possession of blank check on Schraeder’s bank. There were circumstances' showing that Sehraeder was not in debt to him at the time the check was issued. He was contradicted as to the disposition made by him of the money received on the check. Schraeder’s custom in writing checks was to omit writing the name of the month, giving only its number, and the check in question was not so written.

After passing the check and returning to Schraeder’s house, appellant showed great excitement and nervousness when he was told that officers had been looking for him. Appellant testified that he had been convicted of burglary and was charged with murder of Sehraeder.

There was evidence from which the jury would have been justified in the inference that a witness was present at the time fixed by appellant at which he received the check from Sehraeder, and that Sehraeder did not give it to him.

We are unable, in view of the evidence and authorities cited, to agree with appellant’s contention that the evidence is insufficient to support his conviction, and must therefore order the judgment of the lower court affirmed. 
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