
    WESLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.
    Rehearing Denied Oct. 16, 1912.)
    1. Criminal Law (§ 784s’) — Trial—Instructions— CIRCUMSTANTIAL EVIDENCE.
    Where, in a prosecution for passing a forged check, it was positively proven that the purported signer did not sign, or authorize any other person to sign, his name to the check, and it was also proved that accused was the person who passed the check, a charge on circumstantial evidence was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    2. Criminal Law (§§ 419, 420*) — Evidence-Hearsay.
    In a prosecution for passing a forged check, a witness testified that accused purchased a pair of shoes from one of his salesmen and offered the check in payment, when the salesman took accused back to witness and explained the check to him; whereupon accused indorsed the check to witness. Held, that such evidence was based on the witness’ own knowledge, and was not objectionable as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]
    3. Forgery (§ 42*) — Passing Forged Check —Refusal of Payment — Evidence.
    In a prosecution for passing a forged check, evidence that the bank on which the check was drawn refused payment was admissible on the issue of forgery.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 115; Dec. Dig. § 42.*]
    4. Criminal Law (§ 400*) — Evidence—Lost Instrument — Contents—Parol Proof.
    Where, in a prosecution for attempting to pass a forged check, the assistant county attorney testified that when he drew the indictment he carefully compared the check copied therein with the original, which was then in his possession, and that it was afterwards lost and could not be found after diligent search, parol evidence of its contents was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 400.*]
    5. Criminal Law (§ 382*) — Evidence—Materiality.
    Where the first count in an indictment had been quashed because of a defect therein, it was not error to refuse to permit accused to require the assistant county attorney to testify that he knew the first count was bad.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 847-864; Dec. Dig. § 382*]
    6. Criminal Law (§ 598*) — Continuance-Absence of Witness.
    Where a witness for the state had testified against accused at his examining trial in a justice court, and a witness for accused was also present then, but was not used, and no process was issued for him before announcing ready for trial, accused was not entitled to a continuance because of Ms absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    7. Cbiminal Law (§ 641) — Trial — Testimony of Witness — Reading to Jury.
    It was not error for the court, at the jury’s instance to have read to them a portion of the testimony of a witness, in the absence of defendant’s counsel, who was sent for, but could not be found.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1496-1506; Dec. Dig. § 641.]
    8. Forgery (§ 28) — Passing Forged Check —Indictment.
    In a prosecution for passing a forged check, it was not necessary to allege in the indictment an indorsement on the check, where it was shown that it was placed there long subsequent to the execution of the instrument, and not until it was delivered to the indorsee.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 66-76; Dec. Dig. § 28.]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    John Wesley, alias J. W. Tatum, was convicted of passing a forged check, and he appeals.
    Affirmed.
    Ellis P. House, of Dallas, 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
    
   HARPER, J.

Appellant was convicted of passing a forged instrument, and sentenced to two years in the penitentiary, from which judgment he prosecutes an appeal to this court.

The appellant was convicted in this case of passing a forged instrument, and, as it is positively proven that R. T. Sanderson did not sign, nor authorize any other person to sign, his name to the check, and further proven that appellant is the person who passed the alleged forged check, consequently it was not necessary for the court to charge on circumstantial evidence; and the court did not err in refusing the special charge requested.

A number of bills of exceptions to the testimony of the witness S. A. Disterbaeh were reserved. In one it is shown that in answer to a question he testified that appellant purchased a pair of shoes from one of his salesmen, R. T. Johnson; that he carried the cheek to the bank on which it was drawn, and payment was refused. In another bill it is shown that the state’s counsel told the witness, “Just state the conversation that took place.” The hill does not show what answer the witness gave, and in this condition it presents nothing for review. As to the statement that appellant bought a pair of shoes from his salesman, Johnson, the evidence shows that when the shoes were sold appellant tendered a check,' payable to J. W. Tatum,'in payment; that the salesman and appellant went to Mr. Disterbach, and the matter was explained to him, and appellant then indorsed the check over to Mr. Disterbaeh. This shows a personal knowledge of the transaction by the witness, and it was not hearsay.

It was permissible to show that the bank on which the check was drawn refused payment of it, as tending to shed light on whether or not it was forged. When R. T. Sanderson testified he had not signed the check, nor authorized any one else to do so, and that he was engaged in the produce business, and there was no other man by that name engaged in the produce business in Dallas (Mr. Disterbaeh having stated that appellant had told him the check was given him by the produce merchant, Sanderson), appellant, on cross-examination, had developed the fact that Mr. Sanderson did not know everybody in Dallas, and that another person by that name might reside in the city; consequently it was admissible to show that the bank on which it was drawn refused to pay it, as a circumstance tending to show that it was forged.

Mr. Savage, assistant county attorney, was permitted to testify that he had the check in his possession at the time he drew the bill of indictment; that it had been lost since the indictment was drawn; that he had searched the grand jury room and other places where papers turned over to the county attorney were kept, and it could not be found; that at the time he drew the indictment he had carefully compared the cheek copied in the indictment with the original check; that this cheek had been traced from the possession of Mr. Disterbaeh to the possession of the county attorney, and then its loss proven. As this check was lost, all this testimony was admissible, and the further fact that it was payable to the person named in the check, and the name alleged in the indictment signed to it. In the ease of Henderson v. State, 14 Tex. 511, it is said: “It is well settled in trials for forgery, .as well as in other cases, that if the original forged paper is lost or destroyed secondary evidence of its contents may be received” — citing 3 Arch. Cr. Pldg. (6th Ed.) 555. The next best evidence which the nature of the case admits of, and which it is in the power of the party to produce, will be admitted. 3 Greenl. Ev. § 107; Underhill on Ev. § 425, and cases cited. Such was the evidence produced in this case; and there was no error in its admission over the objections made.

Neither was there error in refusing to permit appellant to prove by the witness that he knew the first count in the indictment was bad. The court had quashed the first count because of defect therein, and it was not before the jury. The same ruling applies to the other attachés of the county attorney’s office.

There was no error in refusing to continue the ease on account of the absence of the witness R. T. Johnson. Appellant was present when Mr. Disterbach testified in the justice court, and it is not alleged that his testimony on this trial was different from what it was at that time; that Johnson was present at the trial in justice court, and not used by appellant, and he had never had any process issued for him. He could not claim surprise at the testimony of Mr. Dis-terbach, for he had heard it at the examining trial; and if he desired the testimony of the witness Johnson he should have issued process for him before announcing ready for trial.

Neither was there any error in permitting the stenographer to read the testimony of Mr. Disterbach to the jury, at their request, subsequent to their retirement. The defendant was present when it was done. Article 735 of the O. O. P. provides that if the jury disagree as to the statement of any particular witness they may, upon applying to the court, have such witness again brought on the stand, and he shall be directed by the judge to detail his testimony to the particular point of disagreement, and no other; and he shall be further instructed to make his statement in the language used in his examination, as nearly as he can. The court states that only that part requested by the jury was repeated. No grounds of objection are stated in the bill, other than appellant’s counsel was not present. The court states he tried to find him, and could not do so. The objection made presents no error.

It was not necessary to allege the indorsement on the back of'the check, as it is shown that it was placed there long subsequent to the execution of the instrument, and not placed thereon until and at the time it was delivered to Disterbach. Crayton v. State, 47 Tex. Cr. R. 91, 80 S. W. 839, and section 381, Branch’s Crim. Law.

We have carefully reviewed all the errors alleged, and the court’s charge fully submits every issue in the case in an admirable way. Therefore the judgment is affirmed.  