
    MORGAN v. STATE.
    (No. 4689.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    On Motion for Rehearing, March 20, 1918.)
    1. Forgery <&wkey;44(3) — Passing of Forged Instrument-Evidence — Sufficiency.
    Evidence held to sustain conviction of passing forged check.
    2. Criminal Law &wkey;>1141(2) — Appeaj>-Pee-sumptions — Bills of Exception.
    There is a presumption that the lower court ruled correctly and bills of exception must neg--ative this and show a material error.
    3. Forgery <&wkey;37 — Prosecution — Evidence —Rejection.
    In a prosecution for passing a forged check, where the prosecuting witness whose name appeared thereon denied its authenticity, evidence that he occasionally gambled for money was properly rejected, where no effort was made to show that the check in question was the result of such a transaction.
    4. Criminal Law <&wkey; 1170(2) — Harmless Error — Evidence—Exclusion.
    Where it was a proven fact that the signature of the prosecuting witness was not alike to all documents bearing his admitted signature, accused cannot complain that he was not allowed to require the prosecuting witness to point out the particulars of dissimilarity between his signature on the various papers that were before the jury and an affidavit.
    5. Criminal Law &wkey;>1169(9) — Appeal — Harmless Error.
    Testimony by a banker with whom the check was deposited by defendant and who honored defendant’s cheeks drawn on such deposit that he would not have given defendant the money was harmless, though erroneous.
    6. Forgery &wkey;?40 — Evidence — Admissibility.
    In a prosecution for passing forged check which purported to be made in favor of one E., then transferred to another, and by him transferred to accused, testimony by E. that the check was not given to him or indorsed by him was admissible.
    7. Forgery <&wkey;43 — Evidence — Admissibility.
    Where it appeared in a general way that defendant was insolvent, evidence that neither the prosecuting witness whoes name appeared on the check nor the bank which gave defendant credit on account of the deposit of the check had instituted a civil suit against him was properly excluded.
    8. Criminal Law <&wkey;413(l) — Evidence — Self-Serving Declarations.
    In a prosecution for passing a forged instrument which defendant claimed he received as compensation for his sale of a leasehold, evidence that he told a third person that he had sold the lease was properly excluded, being a self-serving declaration.
    9. Criminal Law <&wkey;1169 (9) — Harmless Error-Opinion Evidence.
    That defendant’s witness, after testifying to his familiarity with the signature of the prosecuting witness, and that the signature in question was that of the prosecuting witness, testified on cross-examination that it appeared as if it was an imitation of the genuine signature, was not error.
    10. Forgery &wkey;>42 — Evidence — Admissibility.
    In a prosecution for passing a forged check which defendant claimed he received as a consideration for his assignment of a lease, testimony that a witness told defendant he had no right to sublease the land was proper, tending to show that the lease alleged to have been transferred was of little value.
    11. Criminal Law <&wkey;683(l) — Evidence in Rebuttal.
    In a prosecution for passing a.forged instrument, where defendant gave testimony as to his financial resources, evidence as to the status of his account with a grocer was properly received in rebuttal.
    12. Forgery &wkey;>29(5) — Indictment—Name oe Person Defrauded.
    An indictment charging the passage of a forged instrument need not state the name of the person defrauded.'
    13. Criminal Daw <&wkey;938(3) — New Trial — Newly Discovered Evidence.
    Where, in a prosecution for passing a forged check, defendant claimed .to have received it in consideration for his assignment of a lease, and testified that the transaction occurred at a meeting with the assignee, alleged newly .discovered testimony that defendant’s brother-in-law was present and familiar with the transaction is no ground for new trial, for defendant must have known it at the time of trial, and, if true, would doubtless have produced the brother-in-law.
    14. Criminal Law <&wkey;944 — New Trial — Newly Discovered Evidence.
    In a prosecution for passing a forged check which defendant claimed he received as consideration for his assignment of a lease, and that, the check being for a sum greater than the amount agreed upon, he paid the assignee the difference in money, alleged newly discovered testimony that defendant’s wife saw him writing the transfer of the lease, and thereafter found that a considerable sum of money was missing from his pockets, is no ground for a new trial.
    On Motion for Rehearing.
    15. Forgery i&wkey;41 — Evidence—Admissibility.
    In a prosecution for passing a forged instrument, defendant’s possession of the forged instrument is evidence against him.
    16. Forgery <&wkey;42 — Prosecution—Incriminating Evidence.
    In a prosecution for passing a forged check, that defendant was familiar with the signature of the prosecuting witness whose name was appended to the check, and that he claimed to have received it in consideration of his assignment of a lease, but was unable at the trial to produce the assignee, were circumstances to be considered by the jury.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    James Benton Morgan was- convicted of passing a forged instrument, and he appeals.
    Affirmed.
    W. M. Pierson and H. Bascom Thomas, both of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for passing a forged instrument, viz. a check for $431 drawn in favor of Roy Evans December 28, 1916, on the National Bank of Commerce of Dallas, signed Paul Agnew.

The facts show that this check, indorsed Paul Agnew, Roy Evans, and Benton Morgan, was deposited by the appellant to his own credit in the National Bank of Commerce at Dallas on January 3, 1917; that he had not previously had au account with said bank; that during the month of January he drew checks against the account, on which he had made no further deposits, which checks left to his credit about $2. Paul Agnew was a merchant in Dallas, had an account with the bank mentioned, and when his bank book was balanced _ about the first of February, 1917, he found his balance short, and, going over his cheeks, declared the one in question a forgery, and caused the arrest of appellant. He declared that he did not sign the check nor authorize its making, and the state introduced a number of checks and other documents bearing his admitted signature and' these were' used for comparison -of handwriting by experts and by others familiar with his signature. Appellant had a lease upon a certain tract of land,, and claims to have sold his lease to Roy Evans for the sum of $350, taking the check in payment and giving to Evans $81 in money, the difference between the purchase price of the lease and the amount of the check: He had rented a dwelling house from Paul Agnew for several mouths prior to the time of the transaction, and had received receipts for the rent from Paul Agnew which were signed by him, and which were also1 introduced in evidence. He also introduced documents'bearing his signature and written in Ms handwriting, among them the checks that he drew against his account at the bank mentioned, and these were used ior comparison by experts and by others familiar with his handwriting. He claimed to have had the transaction involving the sale of the lease at a certain place in Dallas; that he had previously met Evans on two occasions and had made an appointment to make the trade, and that, pursuant to the arrangement, he and Evans met at a certain drug store for the purpose of closing the transaction, and that soon after this meeting it was closed in the manner stated. The evidence of the experts and others with reference to handwriting was conflicting. The signature on the questioned check closely resembled that of the purported maker, Paul Agnew. An inquiry into the financial resources and transactions of appellant was made, and there was testimony as to the value of the lease which he claimed to have sold to Evans. He was unable to locate Evans at the trial, though he claimed to have made considerable effort to do so.

The indictment charged forgery, and also charged the passing of the forged instrument. Both issues were submitted to the jury, and the finding against appellant was upon that of passing. The sufficiency of the evidence to sustain the verdict is attacked, but, without making a review of it further than the above statement, we think it was sufficient to support the verdict. Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 954.

A number of bills of exception complaining of alleged errors upon the trial are found in the record. Most of them relate to the admission or rejection of testimony. As presented, they fail to make clear the relevancy of the various matters to which they relate, and are subject to the-criticism that they are not sumcient fully to manifest the supposed error. Branch’s Ann. P. C. § 207, p. 131, and cases cited. The legal presumption is that the court ruled correctly, and the bills of exception must negative this, and show that a material error was committed. Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; Moore v. State, 7 Tex. App. 20; and other cases cited in Branch’s Ann. P. G. p. 132. We have examined them, however, in connection with the statement of facts and the qualifications made by the trial judge.

One bill complains of the refusal of the court to permit proof that the prosecuting witness, Agnew, occasionally gambled for money. The judge in qualifying the bill says that no effort was made to show that the check in question was the result of such a transaction.

Another bill complains that he was denied the privilege of requiring the prosecuting witness to point out the particulars of the dissimilarity between his signature on | the various papers that were before the jury and his signature to an affidavit which he had made. Appellant had proved by him that there was such dissimilarity, and it was a proven fact that the signature of the prosecuting witness was not alike to all of the documents bearing his admitted signature.

The banker who received the check from appellant was asked by the state if he would have given the money to the appellant, and to this he gave a negative answer. This was in the nature of a conclusion and not admissible, but not so harmful as to affect appellant’s rights; it being admitted that the witness placed the amount of the check to appellant’s credit and paid his checks for it.

The state produced a witness by the name of Roy Hubbard Evans, who testified that the check in question was not given to him nor indorsed by him. This, we think, wras proper as a circumstance bearing upon the issues in the case. The check purported to be made in favor of Roy Evans. Appellant claimed to have gotten it from Roy Evans, and it bore that indorsement.

The failure to permit the appellant to prove that no civil suit had been brought against him on account of the check is not shown tp have been harmful or material error. We are unable to discern any testimony in the record which would have made it so. It is not disputed that the purported maker of the check repudiated it and caused appellant’s arrest as soon as he discovered it, and it is not shown that he or the bank would have profited by a civil suit; on the contrary, in a general way, it appears that appellant was insolvent.

The offer by appellant to prove that he had had a conversation with a witness named Miller, telling Miller that he had sold the lease to Roy Evans for $350, was an offer to prove a self-serving statement, and its rejection was not error. Vernon’s C. C. P. p. 636, note 86, and cases cited.

The receipt of the testimony of the witness Sawyer to the effect that the signature examined by him looked like an imitation of Agnew’s signature is not, as disclosed by the bill of exceptions, shown to have been error. Rooking to the statement of facts, it appears that Sawyer was introduced by the defendant, and by him was shown to be familiar -with the signature of Agnew, and, after stating that in his opinion the signature to the check was that of Mr. Agnew, he testified on cross-examination that there was a difference in Some of the letters from Agnew’s signature as he knew it, and said:

“To tell you the truth, I wouldn’t swear to that being Paul Agnew’s signature. It looks like somebody was trying to imitate his signature in that respect. It looks like his signature.”

The bill complaining of the admission of evidence that the witness had told appel-Iant that he did not have a right to sublease the land which he claims to have transferred to Evans shows no error. It was proper for the state to prove that the lease of the land which appellant claims to have transferred to Evans was of little value. It was a relevant circumstance as bearing upon appellant’s good faith in taking the check, and the truth of his statement that he had sold the lease for $350. This complaint cannot be sustained.

The complaint of the admission of th'e status of appellant’s account with a grocery merchant was proper as rebutting appellant’s testimony in regard to Ms financial resources.

The proposition that it was requisite that the indictment should state the name of the person to be defrauded is not sound. Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; Allen v. State, 44 Tex. Cr. R. 63, 68 S. W. 2S6, 100 Am. St. Rep. 839; Yernon’s C. C. P. art. 454, note 7, and cases listed.

Appellant in his motion for a new trial claims that he had discovered new evidence in two particulars: First, that his brother-in-law, Hamilton, was present and saw him meet Evans and discuss the matter of the purchase and sale of the lease. It appears from the affidavit that Hamilton’s testimony would be to the effect that he was present with' appellant at the time that he had the transaction with Evans; that he had left Dallas on the same day, and had not talked with appellant until after his conviction. Appellant testified that he had made diligent search for Evans, and was closely cross-examined as to his meeting with him and as to persons who had seen them together. If Hamilton was there, appellant’s knowledge of it at the time of the trial is certain. The record negatives the idea that the evidence was newly discovered, and his failure to produce Hamilton at the trial sustains the trial court’s theory that it was not probably true. Branch’s Ann. P. C. p. 126, § 198.

The other newly discovered evidence was that of the wife of appellant, who would have testified that she had learned from appellant that he was about to make the trade, saw him while he was writing the transfer of the lease, and that thereafter had examined his pockets and found that the four $20 bills which he previously had were missing. The relevancy of this testimony was to corroborate appellant in His testimony that in closing the trade with Evans he had given Evans four $20 bills and a $1 bill. We think the trial court’s conclusion that this was not available as newly discovered evidence and was not probably true is sustained by the record. Branch’s Ann. P. C. p. 128, § 200, and cases cited.

Finding the evidence sufficient, and no reversible error committed in the trial of the case, the judgment of the lower court is affirmed.

On Motion for Rehearing.

We have carefully reconsidered the-record in connection with appellant’s motion for rehearing. Without reiterating the statement of the evidence, we are unable to reach any other conclusion with reference to the sufficiency of the circumstantial evidence to show appellant’s knowledge of the forgery. His possession in passing the forged check was a circumstance against him. Fischl v. State, 54 Tex. Or. R. 57, 111 S. W. 410; Gaut v. state, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton’s Orim. Law, § 931; Jackson v. State, 193 S. W. 302.

Other evidence connecting appellant with the transaction, in our judgment, brings it well within the rule permitting the conviction upon circumstantial evidence. See Cyc. vol. 19, p. 1414. The absence of th'e payee in the check, the circumstances under which the alleged indorsement by Evans was made, and the delivery of the check to appellant, the-advantage he derived from the transaction, his opportunities for familiarity with th'e handwriting and business habits of the purported maker of the instrument, are all circumstances which the jury was authorized to take into consideration in reaching the conclusion as to appellant’s guilty knowledge in passing the instrument. Cyc. vol. 19, p. 1421, subd. “b,” and cases cited.

We do not think the matters of evidence-referred to in th'e bills of exception, and' which are discussed in the original opinion,, would be the basis for error if properly presented for review. As presented in the bills, we are clearly of the opinion that none of them overcome the legal presumption in favor of the correctness of the rulings of the triál court. This is necessary. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Ortiz v. State, 68 Tex. Cr. R. 524, 151 S. W. 1058; Anderson v. State, 70 Tex. Cr. R. 594, 157 S. W. 1197; Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W.'751.

The motion is overruled.

PRENDERGAST, J., absent. 
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