
    ANDERSON v. STATE.
    (No. 8878.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1924.)
    1. Criminal law <@=>742(2) — 'Whether attorney was accomplice in forgery of deed hield for jury; denial of instruction as to accomplice's testimony held erroneous.
    In prosecution for forgery of land title, evidence held to .raise issue for jury whether witness, the attorney who took acknowledgments of deed in question, without complying with Rev. St. 1911, art. 6804, was an accomplice, and to render erroneous denial of instruction on law of accomplice’s testimony.
    2. Criminal law <@=>742(2) — Testimony of one connected with criminal transaction no.t binding as affecting his status as accomplice.
    Where one connected with criminal transaction testifies to facts exculpating him,, his explanation is not binding, but with other circumstances presents question for jury, as affecting his status as accomplice.
    3. Criminal law <@=>957(3) — Prejudicial misconduct of jury held not shown.
    Showing that two jurors in leaving courtroom had spoken to state’s attorney without permission held sufficiently shown to be without injury by testimony of jurors and attorney that he had merely been asked to notify members of jurors’ families that they would not be home.
    4. Forgery <@=>47 — Evidence of identity of land covered by alleged forged deed held sufficient to warrant denial of instruction to acquit, in prosecution for forgery.
    In prosecution for forgery of deed which had since been lost or destroyed, evidence as to identity of land covered by deed as that to which defendant was attempting to show title, held sufficient to go to jury and warrant denial of instruction to acquit.
    5. Witnesses <@=>268(1) — Cress-examination of witness in explanation of matters broughlt out on direct examination held proper.
    In prosecution for forgery of deed in connection with land transaction, where attorney who had advised defendant in such transaction testified, as state’s witness, that he received no money in payment, it was competent for defendant to show on cross-examination that he had been otherwise compensated.
    6. Attorney and client <@=>64 — Payment of money or promise thereof is not indispensable to relationship of attorney and client.
    Payment of money or promise of payment is not indispensable to relation of attorney and client.
    7. Criminal law <@=>400(10) — Testimony as to contents of letters held inadmissible as secondary, in absence of showing of effort to produce tetters.
    In prosecution for forgery of deed, testimony by attorney as to contents of letters disclosed to him by defendant, if not inadmissible because privileged, held at least inadmissible as secondary, in absence of showing of effort to procure the letters or testimony showing them not available.
    8. Witnesses <@=>201 (2) — Statements made by one seeking advice to< guide him in commission of offense not privileged.
    Statements by one seeking advice of counsel in order that he may be guided in commission of offense are not privileged.
    9. Criminal law <@=>1091 (2) — Bills of exception to rulings on evidence, not showing attending facts and circumstances, are incomplete.
    Bills of exception, complaining of rulings on evidence, consisting of excerpts from stenographer’s notes, without any showing of attending facts and circumstances, are incomplete.
    10. Criminal law <@=>427(5) — Proof of conspiracy held .to warrant admission of proof, facts, and declarations of coconspirators, in prosecution for forgery of deed.
    In prosecution for forgery of deed, evidence of conspiracy between defendant, grantor’s wife, and others, held sufficient to render admissible against defendant as a conspirator, proof of relevant acts and declarations by his confederates.
    11. Jury <@=>66(I)— Manner of drawing jury not conforming .to statute held improper.
    
    Drawing of approximately 1,000 names of eligible jurors from jury wheel, dividing into groups of 225, each corresponding in number to the weeks of the court, and the listing of such jurors without respect to order in which they were drawn, not conforming to Yernon’s Ann. Pen. Code 1916, arts. 426-434 (Rev. St. 1911, arts. 5151-5158), held improper.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Ross Anderson was convicted of forgery of land title, and he appeals.
    Reversed and remanded.
    Houtchens, Clark & Harrington, of Port Worth, for appellant.
    R. K. Hanger, Crim. Dist. Atty., and J. B. Mastín and W. H. Tolbert, Asst. Crim. Dist. Attys., all of Port Worth, and Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is forgery of land title denounced by article 947, Pen. Code; punishment fixed at confinement in the penitentiary for a period of 16 years.

W. W. Carr had inherited a tract of land, part of which he had received from his mother, and a part having come to him by the will of his father. He was the son by the second marriage of his father, and had two half-brothers, namely, J. S. and J. B. Carr, who were children of the first marriage of his father. W. W. Carr resided upon the land in question

The appellant, Ross Anderson, and one Duncan visited him on several occasions, and he agreed to sell his land to Duncan for $85 per acre. A deed conveying the land to Duncan was executed by Carr and his wife, and Duncan executed 15 vendor’s lien notes in payment of the land. Upon these notes at the time of their execution there was written a transfer in blank of note and lien which was signed by W. W Carr. These papers were prepared and executed in the office of attorneys to which the appellant and the wife of Carr accompanied him and were left with the attorneys. The money obtained by the use of these papers, or some of them, was appropriated by Mrs. Carr, Duncan, and the appellant.

It is the state’s theory that a conspiracy had been formed by the appellant, Ross Anderson, Duncan, and the wife of W. W. Carr in order to defraud the said W. W. Carr out of his land or out of a sum of money which they would secure by mortgaging the land; that in pursuance of this design Carr was induced to join his wife in executing a deed conveying his land to Duncan and in making a blank transfer of the vendor’s lien notes executed by Duncan and secured by a lien upon the land, which deed and notes were left in the possession of attorneys who represented Anderson, Duncan, and Mrs. W. W. Carr; that when it was ascertained from the attorney for the loan company who examined the title that there appeared an outstanding interest in the land in J. S. and J. R. Carr, which presented an impediment to the approval of the title they, in pursuance of the conspiracy, brought about the execution of a quitclaim deed signed by J. S. and J. B. Carr, the half-brothers of W. W. Carr, which, in fact, was executed by Duncan and McMillan in the presence of and with the knowledge of the appellant, Ross Anderson.

One of the witnesses who testified in behalf of the state in support of its theory was Devi Pressley. According to his testimony he was engaged in the practice of law with an office in a building in Port Worth, to which there came the appellant, Ross Anderson, and two other men, who were introduced by the appellant as J. S. and j. B. Carr. Pressley was told by the appellant that he was making a trade upon the farm of old man W. H. Carr in Parker county; that Henry Bishop was looking after some matters for him; and that he (appellant) would pay Bishop for the acknowledgments. The witness did not know either of the men who signed the quitclaim deed in his presence. One signed J. S. Carr, the other J. B. Carr, and he took their acknowledgments to the deed, tie had never seen them before, but on the trial identified one of them as McMillan and the other as Duncan. After the deed was signed, and aft- • er taking the acknowledgments and putting his notarial seal upon it, he handed the deed back to the appellant. It appears from other testimony in the case that when the quitclaim deed mentioned came into the hands of the attorney for the loan company, who was to make objections to the title, appellant and McMillan went to his office, and because of developments there the deed was returned to them.

Appellant insists that the court was in error in refusing to instruct the jury on the law of accomplice testimony as relating to the witness Pressley. It is made the duty of a notary public taking acknowledgments, when he does not know the person making the acknowledgment, to require that his identity be proved upon the oath of some person with whom the notary is acquainted, and that the certificate of the acknowledgment signed by the notary under his seal shall show that the signer of the instrument was made known to the notary under oath. If the certificate does not bear this statement, then the law requires that the certificate shall state that the person was known to the officer. See article 6804, Revised Civil Statutes 1911. In the present case the officer manifestly made a false certificate in that he certified that the parties making the deed were known to him as J. S. and J. B. Carr, when, as a matter of fact, they were not known to him. He also failed to comply with the statute by taking the affidavit of the person introducing these parties and embracing in his certificate the statement that they were made known to him upon the oath of the appellant, Ross. Anderson.

From the notary’s declaration it appears that Bishop was the lawyer representing the appellant, and that he was to be paid for the acknowledgment. From Bishop’s testimony, as found in the record, he had been consulted by the appellant with reference to the transaction. He was ^also consulted in the presence of the appellant by the wife of Carr with reference to a divorce; she having separated from Carr after the money obtained through the transaction had been divided between Anderson, Duncan, and herself. Bishop also testified that he had had.eight or ten conversations with the appellant about the matter, and had seen in his possession a cashier’s check obtained through the transaction involving the sale of the Carr land; that Duncan had also been in conference with him; and that he (Bishop) had warned the appellant against dealing with Duncan, as he might get him into the penitentiary.

Taking the entire record as we find it, we áre inclined to the belief thai the evidence raised an issue for the solution of the jury touching the status of the witness Pressley as to whether or not he was an accomplice witness. See Preston v. State, 40 Tex. Cr. R. 72, 48 S. W. 581. It is a general rule that, where one is connected with a criminal transaction, and testifies to facts exculpating him, his explanation is not binding but, taken in connection with the circumstances attending the transaction, presents a question of fact which ought, on proper request, to be submitted to the jury for solution. See Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523; 16 Corpus Juris, p. 678.

The proposition that there was misconduct of the prosecuting attorney and members of the jury which vitiates the verdict is not deemed sound. It is shown by the bill of exceptions as qualified that as the jury was leaving the courtroom, two of the jurors, without permission from the court, asked the assistant district attorney to inform the members of the families of the jurors that they would not be home. That this was the subject and extent of the conversation was proved by the jurors and by the statement of the assistant district attorney. We think the burden resting upon the state to show the absence of injury was met by the procedure revealed by the bill of exceptions.

The indictment charges that the quitclaim deed, which was the alleged forged instrument, was in the possession of 0. A. Duncan or lost or destroyed, and was not accessible to the grand jury, The indictment sets out what purports to be the substance of the deed which gave a minute description of several tracts of land located in Parker county, Tex. The deed was not introduced in evidence, Duncan was not called as a witness, and no notice was served upon the appellant to produce the deed. However, without specific objection, it seems that there was proof by circumstantial evidence of the contents of the deed. The notary who took the acknowledgments described the instrument as a quitclaim deed purported to have been executed by J. S. and J. B. Oarr, affecting “old man W. H. Carr’s farm in Parker comity.” The deed, according to the notary, after its execution, was delivered to the appellant. From the witness Alexander it appears that he received from the Texas Surety Company an abstract for examination together with an application for loan made by C. A. Duncan and a warranty deed from W. W. Carr and wife to C. A. Duncan, not yet recorded. After examining the title, the witness asked that an affidavit from the heirs of W. H. Carr, deceased, be furnished; also that the deed be recorded, and that the $10,000 note described in the deed be delivered to the loan company. Afterwards, finding from the affidavit of heir-ship that J. S. Carr and J. B. Carr had an apparent interest in the land, he required deeds from them. The papers then in his possession were returned to him, together with “a quitclaim deed signed by J. S. Carr and J. B. Carr. Devi Pressley had taken their acknowledgments.” Later, Anderson and McMillan entered the office of Alexander. McMillan was introduced as Mr. Carr. The original warranty deed from Mr. and Mrs. W. W. Carr was in the possession of Alexander, and had been recorded. According to his testimony the quitclaim deed was also in his possession. McMillan gave as a reason for wanting the deed the fact that he had been advised that he had an interest in the land and did not want to deed it. Alexander said that he had an independent recollection of the description of the land, but could not repeat the metes and bounds without reading from something. He said that he saw the quitclaim deed, and compared it with the description in the abstract. With these circumstances and the vendor’s lien notes in evidence, we think the identity of the land covered by the quitclaim deed with the deed signed by W W. Carr becamq a question of fact, and the court was not in error in refusing to instruct a verdict of not guilty. If objection to the introduction of secondary evidence as to the contents of the deed had been made, a different question would arise.

The witness Bishop testified that he was a lawyer; that he gave advice, and had had various consultations with the appellant; that he also conferred with Mrs. Carr in the presence of the appellant; that in doing so he was acting in the capacity of an attorney. In qualifying the bill complaining of the refusal to exclude Bishop’s testimony the eourt said that the witness testified that he had received no money for representing the appellant in any capacity as a lawyer in connection with this case. According to Bishop’s testimony on the trial the appellant exhibited to him some letters which had been received by the appellant from Mrs. Carr, in which letters the appellant was referred to in endearing terms such as “honey” and “sweetheart.” This occurred before the transaction in which W. W. Carr and wife made the deed to Duncan to Carr’s land and before the execution of the quitclaim deed upon which this prosecution is based. We gather from his testimony, however, that it was during the time that the appellant waá consulting Bishop about the transaction mentioned with Carr. In his testimony Bishop said that he had a number of conversations with the appellant about the transactions with Duncan, and advised appellant that he (Bishop) regarded Duncan as too smart, and would likely get the ■ appellant into the penitentiary. After the deed from W. W. Carr to Duncan was executed and the money divided, we understand from the testimony that Mrs. Carr and appellant came to the office of Bishop, and that Mrs. Carr there, in the presence of the appellant, consulted Bishop with reference to a divorce proceeding against her husband. She did not employ Bishop in the di- • vorce proceeding. According to Bishop’s testimony the appellant exhibited to him several cashier’s checks which he said he had received as commission for the sale of the Carr farm. Bishop used this language: “As to ■whether or not I received any pay from Ross Anderson for representing him in the case I received no money.” Appellant sought, as appears from one of his bills of exception, to elicit from Bishop testimony showing that, while the appellant paid him no money for his services as attorney, he compensated him by mating bonds for clients of the attorney. This bill of exceptions is not in such condition as to require consideration. It is mentioned, however, in view of another trial.

The state having, in the direct testimony of Bishop, elicited the fact that the appellant had not paid him money for the advice given as an attorney, it was, in our opinion, competent for the appellant to show by Bishop in his cross-examination 'that he had been otherwise compensated. By bills of exception the propriety of receiving from Bishop testimony , touching the matters revealed to him by the appellant is questioned. We entertain doubt concerning the correctness of the conclusion of the learned trial judge that the relation of attorney and client did not exist between Bishop and the appellant. We do not understand that the payment of money or the promise of payment of money is indispensable to that relationship. See 24 Ruling Case Law, p. 954, § 290; 2 Wharton’s Crim. Ev. p. 1030, § 497; Branch’s Ann. Tex. P. C. § 154.

That part of the testimony of the witness Bishop which purports to give the substance of the contents of certain ’ letters which were exhibited to him by the appellant would seem inadmissible, independent of the nature of the relations of the parties, for the reason that it was secondary; the record revealing no effort to procure the letters or testimony showing that they were not available. The state’s counsel insists that, granting the relation of attorney and client existed, the testimony is rendered admissible under the rule which denies that' the advice sought by one in order that he may be guided in the commission of an offense is privileged. Orman v. State, 22 Tex. App. 616, 3 S. W. 468, 58 Am. Rep. 662; Orman v. State, 24 Tex. App. 504, 6 S. W. 544; Ott v. State, 87 Tex. Cr. R. 382, 222 S. W. 261. In developing the testimony of Bishop, the state’s counsel did not go into details such as would bring the testimony within the scope of the rule invoked. As the matter is presented by the present record, we are inclined to the view that the evidence adduced tends cogently to show that at least a part of the testimony given by Bishop was in the capacity of an attorney given while the relation of attorney and client existed with reference to the transaction in hand.

We find in the record mort than 80 bills of exception. Eor the greater part, these bills consist in the reproduction of part of the stenographer’s notes in question and answer form. They are, moreover, incomplete in failing to embrace any of the attending facts or give the circumstances under which the rulings complained of were made.

Without discussing the subject in detail, the opinion is expressed that there was evidence of a conspiracy in which Anderson, Duncan, Mrs. Carr, and McMillan were parties as brought into operation the rule of evidence which sanctions the use against one co-conspirator of the relevant acts and declarations of his confederates. This rule will be found stated in many of the decisions of this court. Among them are Cox v. State, 8 Tex. App. 256, 34 Am. Rep. 746; Willey v. State, 22 Tex. App. 408, 3 S. W. 570; 8 Ency. of Law & Proc. p. 680. The rule may be thus stated:

“If two or more act together, with unlawful intent, in the perpetration of a crime, they are co-conspirators and principal offenders by reason of their common design and cooperation, and, whether they be tried and indicted jointly or separately, the antecedent acts or declarations of each, pending and in pursuance o'f the common design, and tending to throw light upon its execution or upon the motive or intent of its perpetrators, are competent evidence against each and all of them.” Cox v. State, 8 Tex. App. 256, 34 Am. Rep. 746.

Under this rule, or the rule of res gestas, or as showing motive and intent, all of the testimony introduced by the state and against which objection was urged was relevant, though some of it, such as secondary evidence of letters and privileged communications 'between attorney and client, may have been inadmissible under other rules of evidence. It seems that counsel for the appellant proceeded upon the theory that nothing was admissible against his client, except the bare fact that he had taken part in the forgery, and the receipt of practically all the other testimony was made the subject of objection.

It appears from the record that, in drawing the jury for the week, the provisions of the statute (articles 5151 to 5158, R. S. and articles 426 to 434, Vernon’s Ann. P. C.) were in some respects not observed. It seems that in drawing the names of the jurors from the wheel, instead of taking them one by one as the statute directs (article 5154, R. S.), and listing them seriatim as directed by article 5155, R. .S., there were taken out in bulk about 1000 cards containing the names of eligible jurors and divided into stacks of 225 each, corresponding in number to the weeks of tbe court. In this condition they were taken by the clerk to his office, and a list made without any attention to the order in which the cards were drawn from the wheel. This matter is mentioned, because it is deemed important that the statutory directions touching the manner of drawing jurors should be substantially observed. The nonobservance of similar statutory provisions with reference to drawing a jury lias on occasions made it necessary to reverse judgments of conviction See Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095.

For the errors pointed out, the judgment is reversed and the cause remanded. 
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