
    ROMERO v. STATE.
    (No. 11324.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    1. Criminal law <§=>404(5)— Genuine check held admissible to compare indorser’s handwriting in trial for passing forged check.
    In trial for passing forged check, genuine check, indorsed by defendant in presence of person cashing forged check, held admissible for purpose of comparing defendant’s handwriting on two checks.
    2. Criminal law <@=>l 170½(6)— Question whether witness had others identify defendant as having given forged instruments held not available error, where court sustained objection, amt instructed jury to disregard question.
    In trial for passing forged check, bill of exception, complaining of prosecution’s question as to whether witness had other people identify defendant as having given forged instruments, showed no error, where court sustained objection, and instructed jury to' disregard question.
    3. Criminal law <©=)925½(3) — Jurors’ comment on defendant’s failure to call or. account'for absence of witness, in whose presence defendant testified that forged check wás delivered to him, held not misconduct warranting new trial.
    Defendant having testified, in trial for passing forged check, that check was delivered to him in his uncle’s presence, jurors’ comment during their deliberations on fact that uncle was not called as witness or his absence accounted for was not misconduct warranting new trial.
    4. Criminal law <@=>19251/2(3) — Ordinarily, juror’s arguments, based! only on what took place in their presence on trial, do not warrant new trial.
    Ordinarily, juror’s arguments, based only on things which took place in their presence on trial, are not grounds for new trial.
    5. Criminal law <@=925(l) — New trial for jury’s misconduct is primarily within trial judge’s discretion, when no statutory mandate was violated.
    When no statutory mandate has been violated, jury’s alleged misconduct as ground for new trial is left primarily to discretion of trial judge.
    6. Criminal law <§=4156(5) — Reviewing court cannot disturb verdict, in absence of abuse of discretion in denying new trial for jury’s misconduct.
    Unless there is an abuse of trial judge’s discretion in refusing new trial for jury’s misconduct, reviewing court is not authorized to disturb verdict.
    Appeal from Criminal District Court, Nue-ces County; A. W. Cunningham, Judge.
    Vicente Romero, alias Ramon Arispe, was convicted of passing a forged instrument, and he appeals..
    Affirmed.
    D. S. Purl and D. Hamilton Lowe, both of Corpus Christi, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is passing a forged instrument; punishment fixed at confinement in the penitentiary for a period of two years.

The instrument was a check for $7, in favor of Ramon Arispe, bearing date February 27, 1927, purported to have been drawn on the State National Bank, Corpus Christi, Tex., signed by F. G. Murray, and indorsed by Ramon Arispe; that the check was forged; and that it was passed by the appellant to H. C. Nieman was shown without controversy.

Appellant testified, and explained his possession of the check, thus: He was driving an automobile for hire, and obtained the check from a man who, in company with the appellant’s uncle, named Manuel Martinez,, was riding in the car. The name of the man from whom he received the check was unknown to the appellant. Appellant claimed that the check was indorsed by Ramon Arispe when it was passed; that he did not write the indorsement, and did not know who did so. Ramon Arispe was called by the state, and testified, disclaiming any connection with, or knowledge of, the check.

According to Nieman, shortly before the check was presented, he was called over the telephone by a person giving his name as Frank Murray, stating:

“I am sending somebody over there with a check, and I wish you would cash it for me.”

Soon thereafter the appellant appeared with the check in question, and passed it to Nieman. Murray testified, and denied the issuance of the check or the calling of Nieman over the telephone.

About a month before the transaction, Murray had given the appellant a check for $4.75, which had been cashed by Nieman. The appellant indorsed it in Nieman’s presence. The che9k was introduced in evidence for the purpose of comparison of the appellant’s handwriting in the signature on the ■indorsement with that which appeared upon the alleged forged cheek. The complaint of the introduction of the genuine check for the purpose stated is not deemed meritorious. The writing of the appellant’s name upon the back of the genuine check was proved by the direct evidence of Nieman, and conceded by the appellant. The rule of evidence which, under such circumstances, sanctions the receipt in evidence of the indorsement of the genuine check, is supported by many court decisions and text-writers. See Hughes v. State, 59 Tex. Cr. R. 294, 129 S. W. 837; Phillips v. State, 6 Tex. App. 364; and numerous decisions collated in Branch’s Ann. Tex. P. C. § 1141, subd. 3; Underhill’s Crim. Ev. (3d Ed.) § 195, note 93.

The prosecution asked a witness if he had other people identify the appellant as having given forged instruments. The court sustained the objection to the question, and instructed the jury to disregard it. The bill shows no error.

Appellant sought a new trial upon the ground that the jury in their deliberations considered and discussed the failure of the appellant to introduce certain witnesses, and upon the further ground that in their deliberations some of the jurors assumed or argued that the witnesses mentioned might be introduced upon appeal. Two men who served upon the jury testified upon the hearing of the motion for new trial. According to their testimony, they took into consideration the fact that the defendant did not produce any witnesses, and were not convinced of the existence of his uncle. They said they received no evidence from the outside, but based the verdict upon the evidence; that they discussed the case among themselves, and felt like, if the appellant did have an uncle, he should have had him as a witness. The appellant having given testimony that the spurious check was delivered to him in the presence of his uncle, the comment upon the fact that the uncle was not called as a witness or his absence accounted for cannot be regarded as misconduct of the jury. See Jones v. State, 7 Tex. App. 105; Ables v. State, 77 Tex. Cr. R. 302, 177 S. W. 1164; Underhill’s Crim. Ev. (3d Ed.) § 45.

Ordinarily, when the members of the jury, in discussing the case in their retirement, advert to those things alone which took place in their presence upon the trial, their arguments based thereon are not the proper subject of inquiry in attacking the verdict. They are not within any of the provisions of the statute stating the grounds of a new trial. See Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Jack v. State, 20 Tex. App. 660. When the mandate of no statute has been violated, the alleged misconduct of the jury as a ground for a new trial is left primarily to the discretion of the trial judge, and, unless there is an abuse of the discretion, the reviewing court is not authorized to disturb the verdict. See Reese v. State, 87 Tex. Cr. R. 245, 220 S. W. 1096; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Todd v. State, supra. In overruling the motion in the present case, we have perceived no abuse of the discretion.

Finding no error presented for review, the judgment is affirmed. 
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