
    WELCH v. STATE.
    (No. 10723.)
    (Court of Criminal Appeals of Texas.
    March 2, 1927.)
    I.Witnesses <&wkey;4l4(2) — Refusing defendant in forgery prosecution permission to introduce his testimony at former hearing to meet effort to impeach him held prejudicial error.
    Refusal to permit defendant in forgery prosecution to introduce testimony given by him on the examining trial soon after the alleged offense that he did not know any of parties whose names appeared on forged check, for the purpose of sustaining his testimony on the trial against effort to impeach him on such matter, held prejudicial error.
    2. Witnesses <&wkey;360 — In forgery prosecution, refusing defendant permission to prove innocence of charges under other pending indictment held error.
    Where state proves that defendant in forgery prosecution is under indictment in another county on a similar charge, it is prejudicial error to refuse to permit him to try to explain his innocence of the other charge.
    3. Criminal law &wkey;j683(l) — Refusing defendant oharged with forgery permission to prove conversation between third persons to meet prior conversation at different place, held not error.
    In forgery prosecution, it was not error to refuse defendant permission to prove by his father an alleged admission by another of his guilt of the crime with which defendant was charged, to meet evidence of disconnected conversation at different place two or three days earlier.
    4. Criminal law <&wkey;1173(3) — Failure to give charge on alibi as related to offense of passing forged check held not ground for complaint.
    Failure to give a charge on alibi as related to offense of passing forged check held not ground for complaint, though issue was clearly raised and defendant presented a charge thereon, where defendant was acquitted of that charge.
    Commissioners’ Decision.
    Appeal from District Court,' Gillespie County; J. H. McLean, Judge.
    Joe Lee Welch, was convicted of forgery, and he appeals.
    Reversed and remanded.
    Will A. Morriss, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of forgery, and his punishment assessed at two years in the penitentiary.

It was the contention of the state, and evidence was introduced to that effect, that the appellant presented a check in the sum of $25, drawn on the Schreiner Bank, to Klaerner & Schmidt, a mercantile firm at Fred-ericksburg; that said check was purported to be signed by E. D. Burleson and payable to J. E. Clute; that the appellant indorsed said check by signing on the back thereof the name “J. E. Clute,” stating at the time that it was his name; and that said firm cashed the check, deducting from the amount thereof $7 or $8 with which to pay for some groceries purchased from them by the appellant. It was the further contention of the state that the maker and payee on said check were fictitious persons. The appellant defended upon the ground that he knew nothing of the transaction in question, and that at the time it occurred, as testified to by the state’s witnesses, lie was at 'the Central Drug Store In Fredericksburg, two blocks away from the alleged scene of action. Appellant further tes-fied that the check, in question was cashed, he learned afterwards, by his cousin, Claude Roberts, who was traveling with him at the time in an automobile and who was about the same age as appellant and who bore a close resemblance to him.

The record contains many bills of exception, but we will only discuss those which we think are necessary for á proper disposition of this case and such as raise questions likely to arise again upon another trial. Bills of exception 5 and 16 complain of the action of the court in permitting the state, on cross,-examination .of the appellant, to prove by him that he was not acquainted with a man by the name of E. D. Burleson, and that he did not know anybody named J. E. Clute; and also to have him testify, over his objection, that he made a sworn application, which was also introduced in evidence by the state, asking for process for the said E. D. Burleson and J. E. Clute as witnesses, alleging that they lived in Kerr county and were material witnesses in his behalf; and to have appellant further testify that he obtained these names from said check. These bills further show that after the court had admitted this testimony over his objection, the court then refused to permit appellant to introduce in evidence his voluntary statement made prior thereto on the examining trial and reduced to writing, wherein he testified that he never knew of any persons bearing the names of J. E. Clute or E. D. Burleson, which testimony, in effect, was the same as that given by him on the instant trial and sustained his defense. We are of the opinion that after the court permitted the state to elicit from the appellant, on cross-examination, the information that he never knew any parties bearing the names found in the check, and permitted the state to introduce the application made by appellant asking for process for said alleged named parties as witnesses, which, appellant testified, was made at the instance of his attorney, the court was clearly in error in refusing to permit the appellant to introduce in evidence so much of his testimony given on the examining trial shortly after the alleged offense, and prior to said application for process, as tended to support his testimony on the main trial. Mr. Branch, in his Ann. P. O. p. Ill, under section 181, states:

“Where defendant or his witness has been impeached or sought to be impeached by proof of .contradictory statements, it is error to refuse to permit defendant to sustain his own testimony or that of his witness by proof of statements similar to those testified to on the trial which were made shortly after the transaction,” etc.—citing Williams v. State, 24 Tex. App. 666, 7 S. W. 383; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 751, and many other authorities.

Bills 7 and 8 complain of the action of the court, after permitting the state to show by the appellant on cross-examination that he was then under indictment in Kendall county charged with forgery and the passing of a forged instrument, in refusing to permit the appellant, in explanation thereof, to testify that he was indicted jointly with Claude Roberts on a transaction which grew out of the passing of a check by said Roberts, and that he was not in any manner connected with said transaction and was not guilty of the offense. The court’s qualification to these bills states that he sustained the state’s objection to appellant’s proposed explanation because it, in effect, would be allowing the appellant to go into the trial of that transac-. tion. We are of the opinion that the learned trial judge was in error in refusing to permit the appellant to explain, if he could, that he was not guilty of the offense charged against him in Kendall county, after the state had attempted to becloud his testimony by reason of being charged with said indictment. This court has repeatedly held that under such circumstances the appellant has the right to introduce evidence which would militate against imputations of untruthfulness coming from the introduction of evidence of other indictments, and to explain to the jury, if he can, that he is not guilty of such charges. Wallace v. State, 83 Tex. Cr. R. 588, 200 S. W. 407; Skinner v. State, 94 Tex. Cr. R. 371, 251 S. W. 810; Randell v. State, 102 Tex. Cr. R. 410, 278 S. W. 210.

Appellant also complains of the action of the court in refusing to permit him to prove by his father that he (the witness) heard Claude Roberts state, several days after the appellant had given bond, that appellant had nothing to do with the check in question, and that he (Roberts) cashed the check in the absence and,without the knowl-t edge of the appellant, and that the reason why he told officers it was appellant who cashed the check was in order to get enough time in which to leave the country. From appellant’s brief we infer that he insists that this testimony was especially admissible after the state had proved by Sid Roberts, brother of Claude Roberts, that he (the witness) heard appellant state to Claude Roberts that if he were to testify as to what happened relative to the check in question, he (appellant) would go to the penitentiary. The court, in qualifying these bills, states that the conversation testified to by Sid Roberts took place two or three days prior to the alleged conversation which the appellant sought to prove .by his father, and' that the two conversations were at different places and wholly disconnected with each other. These bills, as presented, show no error.

The appellant complains of the refusal of the court to give a charge on abibi, after he had specifically objected to the court’s charge by reason of such failure and bad prepared and presented a special charge thereon. We are of the opinion that this issue was clearly raised and demanded a charge thereon, bearing on the count in the indictment which charged appellant with passing a forged instrument. Had the appellant been convicted on this count in the indictment, the refusal of the court to charge on alibi would have been reversible error; but since the appellant was convicted of forgery, this question passes out of the case.

After a careful examination of the entire record, we are of the opinion that, for the ■errors discussed, the judgment of the trial court should be reversed and remanded, and .it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court 
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