
    Fritz Martin v. The State.
    No. 4467.
    Decided May 9, 1917.
    Forged Check — Intent to Bass — Sufficiency of the Evidence — Handwriting — Expert Testimony.
    Where, upon trial of knowingly having a forged check in his possession with intent to pass it as true, the evidence as a whole circumstantially corroborated the hank experts in their testimony, to the effect that the name signed to the check was defendant’s handwriting, the same was sufficient to sustain the conviction.
    
      Appeal from the District Court of Wichita. Tried below before the Hon. Wm. N. Bonner.
    Appeal from a conviction of knowingly having in possession a forged instrument with intent to pass as true; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      F. B Martin, for appellant.
    On question of insufficiency of the evidence: Daniel v. State, 60 Texas Crim. Rep., 515, 132 S. W. Rep., 773 ; Davis v. State, 68 Texas Crim. Rep., 405, 162 S. W. Rep., 1094; Shaw v. State, 73 Texas Crim. Rep., 337, 165 S. W. Rep., 920.
    
      E. B. Hendricks, Assistant Attorney General, for the State.
   PRENDERGAST, Judge.

Appellant was convicted of knowingly having a forged check in his possession with intent to pass it as true, under article 939, P. 0., and was assessed the lowest punishment.

The sole objection to the court’s charge was fully met by the. court in giving appellant’s special charge on that subject covering the point of objection. The court gave a correct charge properly submitting the question upon the offense of which appellant was found guilty, and also therein gave a correct charge on circumstantial evidence. There is no objection at all to the court’s charge other than as stated above.

There is no bill of exceptions in the record. The sole question is whether the evidence was sufficient to sustain the conviction. Appellant contends that it was not and that the State did not disprove as untrue his sworn written testimony in the examining trial, which was introduced by the State.

Appellant did not testify at all on this trial. He plead for a suspended sentence. The sole testimony he introduced was by Mr. Martin,who testified that he had known appellant all his life and that he had never been convicted of a felony in this or any other State and that there was no reason or excuse for him to commit the crime of forgery; that he left home some weeks before his arrest and had some money at the time; he did not know how much; that appellant could have secured what money he needed from him at any time, if necessary.

As the testimony introduced by the State is comparatively not long, we will copy the whole of it.

L. E. Jones testified: “I live in Wichita Falls, Wichita County, Texas, and am the general manager of the corporation known as Jones-Kennedy Dry Goods Company of Wichita Falls. I had a business transaction with the defendant, Fritz Martin, in our store on the 28th day of September, 1916. What led up to the transaction was a girl down in the flats ’phoned up and wanted to buy a coat and we sent some coats down to her place for inspection, and at that time she said that there was a party at her place who would pay for the coat. She selected a coat and sent it back, and this -defendant came in our store and gave me a check on the People’s Bank and Trust Company of Byan, Oklahoma, signed by Fritz Martin. I saw him sign this check and he told me at that time tliat he had the money in the bank to pay same. After I had ’phoned the bank at Byan, Oklahoma, I did not deliver this coat to the girl but held up the same. 1 then had defendant arrested. At the time of his arrest he was in a pool hall. This man who is the defendant in this case is the same party that give me this check for seventy-five ($75) dollars, and is the same party who was arrested in the pool hall.”

W. J. Howard testified: “I am the justice of the peace of precinct Ho. 1, Wichita County, Texas, and as such justice of the peace held the examining trial of this defendant and as this defendant has been duly warned by mé as required by law, he made the following voluntary statement: (Here follows written sworn statement by appellant, which is:)

“ ‘Fritz Martin being advised by W. J. Howard that he did not have to make any statement at all and any statement he made could be used as evidence against him oh the trial of the case concerning which said statement was made did voluntarily make the following statement to W. J. Howard: “I am twenty-seven years of age; I was born in 1889 on the 24th day of October; I am a single man and live at Longview, Texas; I came to Wichita Falls night before last and got here about 12 o’clock.- I intended to go to Seymour to pick cotton when I came here; I am a common laborer and have no profession or trade. I did not give the Jones-Kennedy Dry Goods Company a check yesterday for seventy-five ($75) dollars. I gave no dry goods company a check yesterday for a coat. I have no money in any bank at Byan, Oklahoma. I have no money in the People’s Bank and .Trust Company of Byan, Oklahoma. I deposited $10 in that bank on last Monday. I think it was one day this week I drew that $10 out of the bank. I drew this $10 out day before yesterday. That is the only money I ever had deposited in that bank. That bank issued me a deposit slip for $10, but never issued me a deposit slip for $110. I was in a poker game with F. E. Coats yesterday and he gave me a' check for twenty-seven ($27) dollars. That check for $27 was given to me by F. E. Coats. It was for winnings in a stud poker game. This John Arnett check for $11 was for a gambling debt given me by John Arnett. We had this game near a railroad here. I don’t know what either John Arnett or F. E. Coats do.

“ ‘ “Coats is a little fellow and was in duckings and is a light-headed fellow. He is a man about thirty years, light complected and clean-shaven. John Arnett is a small, black-headed fellow, weight about 130 pounds; he is a man about twenty-five years old, clean-shaven; a man about 5 feet and 6 inches tall.

“ ‘ “The above is a specimen of my handwriting. These checks which I have, signed by John Arnett and F. E. Coats, were written by them. I did not write any part of either of those checks. I did not write any word on either of these checks. The deposit slip which I had from the People’s Bank and Trust Company of Byan, Oklahoma, was taken off of me last night. I was just marking on this deposit slip there. The deposit slip was not like it is now when I received it. I was sitting down and marking on it. The deposit slip was for $4.00 and $6.00; the figures 4 and 6 were put on the deposit slip by the banker. I added the ciphers to the figures 4 and 6. I just put those o’s on "it. I also added the figure T to the 10 and made figure 10 appear to be 110.00. I retraced the 4-6 and 10 with my pencil. I did this while on the train or at the depot at Binggold, Texas. I did this merely scratching, that’s all. I say I did not give Jones-Kennedy Dry Goods Company or any other dry goods company a check for $75 yesterday. I gave no one a check for $75 on yesterday. I did not give Jones-Kennedy a check for $75 yesterday.” ’ ”

W. S. Cowling testified: “I know the defendant, Fritz Martin, and saw him in the Jones-Kennedy store on the 88th of September, 1916. I work in this store. I remember something about a transaction in which he gave a check to Mr. Jones for $75 for a coat. I also remember when he was arrested. He was arrested in the pool hall on Seventh Street. I was present at the time he was arrested. I was with the officers when they arrested him, and when they arrested him they carried him to the City Hall and there searched him. I was present when they searched him. At the time they searched him I saw them take off of his person two checks, one drawn on the First National Bank of Wichita Falls for eleven (11) dollars purporting to be signed by John Arnette and the other purporting to be signed by F. E. Coats. These checks which you show me are the two checks that were taken off of this defendant at the City Hall. There was also a deposit slip taken off of this defendant at the City Hall, and I saw this deposit slip in his possession when he was in the Jones-Kennedy store at the time he gave Mr. Jones a check for $75. I do not know either F. E. Coats or John Arnette; I never have heard of these parties. The defendant was arrested in Wichita County, Texas, and had these checks together with this deposit slip in his possession in Wichita County, Texas.”

The State next introduced in evidence the said purported check made the basis of the conviction herein, as follows:

“Wichita Falls, Texas, 9/28 1916. No.....

The First National Bank of Wichita Falls. 88-129

Pay to Fritz Martin or bearer $27.00 Twenty-seven Dollars.

F. E. Coats.”

The State next introduced the following purported check:

•'Wichita Falls, Texas, 9/25 1916. No.....

The First National Bank of Wichita Falls. 88-129

Pay to Fritz Martin or bearer $11.00 Eleven Dollars.

John Arnette.”

The State next introduced the said deposit slip which had been identified by Mr. Cowling as the one taken off of defendant’s person, as follows:

W. M. McGregor testified: “I am the active vice-president of the First National Bank of Wichita Falls, Texas. I have been engaged in the banking, business for more than twenty years. During this time I have had occasion to examine many signatures. I have examined the checks and the signature offered in evidence here. It is my opinion that the check purporting to he signed by F. E. Coats and the check purporting to he signed by John Arnett were written by the same person. It is also my opinion that the person who wrote the names John Arnett, F. E. Coats and Fritz Martin in the statement of the defendant offered in evidence was the same person who wrote the two checks and who signed the two checks. I believe the handwriting on these several instruments is all the same. F. E. Coats never did have an account with the First National Bank of Wichita Falls, Texas, and I know no such person." John Arnett never did have an account with the First National Bank of Wichita Falls, and I do not know this person. Neither of these persons have ever been a depositor of ours.”

W. L. Robertson testified: “I am assistant cashier ®f the City National Bank of Wichita Falls, Texas. I have had occasion to examine signatures for the past twenty years. I have been teller for this bank for a number of years and recognize all signatures which come under my inspection during that time. I have examined the handwriting on the two checks offered in evidence, one purporting to be signed by F. E. Coats and one purporting to be signed by John Arnett. I have also examined the handwriting of the defendant in the statement offered in evidence made before W. J. Howard. It is my judgment and opinion that the person who signed F. E. Coats to the check offered in evidence and who signed John Arnett to the check offered in evidence is the same handwriting as that in the body of this statement made to W. J. Howard. I am well acquainted in the City of Wichita Falls and have known anybody by the name of F. E. Coats or John Arnett.”

Edna Mayes testified: “I live in the flats. On or about the 28th day of September, 1916, this defendant, Fritz Martin, was in my place in the flats, and there was a girl there; and this girl in the presence of the defendant said that he was going to buy her a coat, and I asked her why she did not get him to buy her a hat also. She said that he would not buy her a hat. After she made this statement, she had some coats sent down to my place and selected one of these coats. This defendant said that he would pay for the same. This was on the 28th day of September, 1916.”

R. L. MeFall testified: “My name is R. L. McFall. I live in Wichita Falls, Texas. I have lived here for eighteen or twenty years. I am the deputy sheriff and jailer at this time and have been deputy sheriff and jailer for the past three years. I remember when the defendant was arrested and was present at his examining trial. I have had the two checks in my possession since the time of his arrest, the two checks signed F. E. Coats and John Arnett payable to the defendant. After his arrest and before the examining trial I made inquiry for F. E. Coats and John Arnett but never could find who they were, where they lived or what they did. After the examining trial I also continued to make inquiry for these two parties but never could locate them or hear of them or anyone who knew them. After this defendant was indicted for this offense a subpoena was delivered to me for F. E: Coats and John Arnett, and I made thorough inquiry and investigation for these parties but I never could locate them. I have asked nearly every business house in Wichita Falls if they knew these parties but could find no one who had ever seen them. I have asked Mr. Oral Jones, the paying teller at the City National Bank, Mr. T. T. Reese, the assistant cashier at the City National Bank, Mr. B. Montgomery, the collector of said bank, Mr. C. W. Reid, the cashier of the National Bank of Commerce, W. R. Ferguson, president of the Wichita State Bank, Wm. Huff, teller at the First National Bank, D. B. King, groceryman, and B. M. Bullard, tax collector of Wichita County, and a great number of other persons about these parties but have been unable to find anyone who ever knew them or who ever heard of them.”

L. E. Jones, recalled, testified: “I have been engaged in the mercantile business in Wichita County for a number of years and do not know E. E. Coats or John Arnett. At the time the defendant gave me the check for $75, he also showed me a deposit slip for $110 upon People’s Bank and Trust Company of Byan, Oklahoma. This is the deposit slip which he showed me that the State has here offered in evidence.”

We regard the evidence as a whole to circumstantially corroborate the bank experts in their testimony to the effect that the names signed to the checks was appellant’s handwriting.

The evidence was sufficient to sustain the conviction. The judgment is, therefore, affirmed.

Affirmed.  