
    WILBURTON v. STATE.
    (No. 3786.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law <&wkey;1069 — Appeal—Conditions Precedent — Passing oe Sentence.
    An appeal does not lie until sentence has been pronounced on accused found guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. &wkey; 1069.]
    2. Criminal Law <&wkey;1099 — Record—Statement oe Facts — Time oe Filing.
    Accused, sentenced at a term subsequent to the term at which he was convicted, has 90 days after sentence in which to prepare and file a statement of facts, and a statement of facts filed within that time must be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    3. Criminal Law <&wkey;928 — Trial — Misconduct oe Jury.
    Where, on a trial for forgery of an in-dorsement on a draft for $76.50, the prosecuting witness testified that he had not indorsed the draft nor signed the names thereto, the statement of a juror, before a vote was taken by the jury, that he knew that the prosecuting witness would not swear another man into the penitentiary for $75, was not the giving of additional testimony, and a motion for a new trial on that ground was properly denied, in the absence of anything to indicate that the juror had ever known the prosecuting witness before being impaneled on the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2263-2271; Dec. Dig. <&wkey;> 928.]
    4. Criminal Law <&wkey;>1159 — Verdict — Conclusiveness.
    A conviction on conflicting testimony and sustained, by testimony will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 1159.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    J. A. Wilburton was convicted of forgery, and he appeals.
    Affirmed.
    Butler L. Knight and Russell B. Wine, both of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of forgery, and his punishment assessed at two years’ confinement in the state penitentiary.

The sentence was not pronounced on appellant at the term of court at which appellant was tried, but he was sentenced at a subsequent term of court. As no appeal would lie until sentence was pronounced, appellant had 90 days after sentence in which to prepare and file a statement of facts. As the statement of facts was filed within the time required by law after the pronouncing of the sentence, the motion to strike out the statement of facts is overruled. However, the record contains no bills of exception, and, as presented to us, there are but two questions we can review: (1) Did the court err in refusing to grant a new trial because the jury received additional testimony; and (2) will the testimony sustain the verdict?

To the motion for a new trial is attached the affidavit of one of the jurors, who says:

“My name is O. L. Gruzevski, one of the jurors who sat on the case of State v. J. A. Wil--burton charged with forgery in Thirty-Seventh judicial district court, Bexar county, Tex., and I make the following affidavit: I incidentally remarked to said defendants’ counsel, a day or two after said case was tried, that one of the jurors made the statement in the jury room that he knew that Ed Gutzeit would not swear another man into the penitentiary for $75. This statement was made before a vote was taken. I do not know the juror’s name making said positive statement, but he was a large, tall man.”

This is all the affidavit and all the remark that it is claimed was made. Jurors, of course, necessarily discuss the testimony, and for one of the jurors to say “that he knew Ed Gutzeit would not swear another man into the penitentiary for $75” is but an expression of the witness in regard to the testimony adduced on the trial. Appellant was charged with forging the name of Gutzeit Bros., Ed Gutzeit, to an indorsement on a draft for $76.50, guaranteeing the payment of the draft. So the issue to be decided in the case was whether or not appellant had forged those names to the draft. Ed Gut-zeit was a witness in the case and had testified that he had not indorsed the draft nor signed the names thereto. There is nothing in the affidavit to indicate the juror had ever known Ed Gutzeit before being impaneled on the jury. He had heard him testify, and for him to say he knew Gutzeit would not swear another man in the penitentiary for $75 was but an expression of his opinion on the testimony adduced on the trial. This was not giving additional testimony, and the court did not err in overruling the motion for new trial on this ground.

On the question of the sufficiency of the testimony, we will say there was a sharp issue as to whether Ed Gutzeit signed the $76 draft. He positively swore he did not sign the $74 draft, and said that was a forgery also, but paid it to help appellant out of trouble. Appellant swore that Gutzeit signed both of them. Experts were called, and Mr. Lentz, a banker, testified that, in his opinion, the signature to that draft and one to a check admitted to have been written by Gutzeit was the same, but was the only one who so testified. Mr. Matthews, another banker, said there was some similarity, but he could not say they were the same. Mr. Haile testified, “The handwriting seems to differ,” while Mr. Boetz testified that the signature to the alleged forged check was not the signature of Gutzeit.

With this conflict in the testimony, we cannot say the jury were not justified in returning the verdict they did return.

The judgment is affirmed. 
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