
    ESCUE v. STATE.
    (No. 10570.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    1. Criminal law &wkey;>598(7) — Refusal of continuance for absent witness held not error, where accused did not claim he had gotten process for witness or that he knew where witness was.
    Refusal of continuance for absence of witness held not error, in prosecution for passing forged instrument, where defendant did not claim he had ever gotten any process for such witness or that he knew where witness could be found, and indictment was returned more than two months before trial.
    2. Forgery <®=o47 — -In prosecution for passing forged instrument, evidence held for jury, notwithstanding failure to show defendant’s lack of authority to sign check.
    Evidence held sufficient to take case to jury in prosecution for passing forged instrument, where it was shown that defendant knowingly passed forged check, notwithstanding that state did not show defendant’s lack of authority to sign such check.
    
      3. Criminal law <@=371 (5) — Where one accused of passing forged instrument claims innocent intent, proof that he possessed or passed other forged instruments held admissible.
    Where there was claim of innocent intent of accused charged with passing forged instrument, it is permissible to prove him in possession of other forged instruments or that he made or passed other forged instruments similar to or about time of one made basis of prosecution.
    4. Criminal law <@=>695(2) — Objection to evidence as immaterial and irrelevant held too general to warrant review.
    Objection to evidence on ground that it is immaterial and irrelevant in prosecution for passing forged instrument held too general to call for consideration on appeal.
    5. Criminal law <§=> 1168(2) — Refusal to allow defendant’s counsel to talk to witness in presence of accused, if error, held harmless.
    In prosecution for passing forged instrument, court’s action in refusing defendant’s counsel permission to talk to witness in presence of defendant, if error, held harmless, where counsel was permitted to talk to witness and witness was placed on stand and testified fully.
    6. Witnesses <@=>337(5) — Proof that defendant had been legally charged with another offense involving moral turpitude held admissible as affecting credibility.
    In prosecution for passing forged instrument, it was permissible for state to show that defendant had been legally charged in court with another offense involving moral turpitude, as affecting his credibility as witness.
    7. Criminal law <@=>7221/2 — Reference to fact that defendant had been indicted for another forgery' held not error.
    In prosecution for passing forged instrument, reference to fact that defendant had been indicted for forgery of another check held not error.
    8. Witnesses <@=>337(6) — Asking defendant whether he knew that he was wanted in another county for another forgery held not error.
    In prosecution for passing forged instrument, it was not error to ask defendant if he did not know he was wanted in another county for another forgery.
    9. Criminal law <@=>1120(3) — Bill complaining of refusal to allow defendant to testify to certain facts, which did not show what he would have answered, held not to show error.
    Bill complaining that defendant was not permitted to testify as to what he was charged with when confined in federal penitentiary, Which did not show what witness would have answered, held not to show error.
    10. Criminal law <@=s7211/2 (2) — !n prosecution for passing forged instrument, argument referring to absence as witness of person claimed by defendant to have authorized check held not error.
    In prosecution for passing forged instrument, in which defendant claimed that check was signed by him for and by authority of another, reference to absence of such other as witness by state’s attorney in argument held not error.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Samuel W. Escue was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    W. R. Smith and Paul D. Thomas, both of El Paso, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for passing a forged instrument; punishment, 3 years in the penitentiary.

The statement of facts in this case is unusual. It does not represent the witnesses as speaking in the first person, but speaks of them throughout in the third person, and is confusing to us.

Appellant was convicted of passing a check signed “John W. Clark” and drawn on the First National Bank of Austin, Tex., payable to the appellant or bearer, in the sum of $20, and indorsed on the back by appellant. Mr. Hart testified that in September, 1925, appellant passed said check to him, telling him that the check was all right, that he had had several of them, ?md they had always gone through. The check was made out on a blank of the Guaranty Pecos Valley State Bank of Pecos, Tex. The words “Guaranty Pecos Valley State” and “Pecos” were erased, and the other words necessary to change the check into the First National Bank of Austin, Tex., were written on the blank. It was in testimony that there was no such bank in Austin as the First National Bank, and that the check was returned unpaid.

The state introduced a Mr. Davis, who said he lived in Toyah, Tex., and in 1925 appellant passed a check to him drawn on a bank at Austin, signed “Lee J. Marks,” made payable to appellant, and drawn on the same kind of blank and with the same changes made in' same as appear in the alleged forged instrument passed to Mr. Hart, forming the basis of the instant prosecution. This check was returned to the witness Davis unpaid. The state introduced another witness who testified that he had had 25 years’ experience as a handwriting expert, and this witness testified that the signature “John'W. Clark” to the forged check figuring in the instant case, and the name “Lee J. Marks,” signed' to the forged cheek shown to have been passed by appellant to witness Davis, were in the same handwriting. This witness also said that the same man who wrote “Lee J. Marks” on .the check passed to Davis, also' wrote the name “Samuel W. Escue” in the body of the check passed to Hart, and indorsed the name “Samuel W. Escue” on the hack thereof.

The state introduced another witness who testified that appellant had been in his office apparently upon business transactions and had given the name of Bryant, and had telephoned to witness from San Antonio, Tex., and from Carlsbad, N. M., giving the name of Bryant, but was identified as appellant’s voice, by the witness. This is the substance of the state’s testimony.

Appellant' introduced Ms father and two other witnesses, who testified they knew a man named John W. Clark who was a friend or appellant and with whom they narrated various transactions had by appellant. Appellant testified that he had known John W. Clark for about a year, and that on the occasion in question he met Clark in El Paso, and that Clark gave him the check which he passed to the witness Plart, and that Clark assured him that the cheek was good. Appellant testified that he told Hart what Clark said, and also told Hart that, if the check was not good he would make it all right. He claimed that Clark could not write because of a cataract on his eye, and at Clark’s request he had signed the latter’s- name to the check. He denied having signed the name “Lee J. Marks” to the check passed to Mr. Davis. He admitted that he was being prosecuted in El Paso county for the offense of swindling upon another check. He also admitted that he had been in the United States penitentiary at Leavenworth, Kan.

Appellant sought a continuance because of the absence of John W. Clark, but did not claim that he had ever gotten any process for said witness Clark, or that he knew where Clark could be found. The indictment was returned in February, 1926, and the case went to trial on the 7th of May of said year. The application for continuance is wholly lacking in a showing of diligence.

Appellant has a bill of exceptions complaining of the refusal of an instructed verdict of not guilty; the claim being that the state did not show his lack of authority to sign the check mentioned in evidence. It is not incumbent upon the state to disprove the testimony of the accused in any particular. The circumstances seem to establish that said check was a forgery. It was drawn upon a bank nonexistent, and upon exactly a similar blank as used by appellant in another instance where he signed the name of a different party to a check from that used by him in the instant case. We think the facts in evidence ample to establish the fact that the cheek in question was a forgery. There was no testimony before the court and jury, save that of appellant, in anywise indicating that John W. Clark had anything to do with the alleged forged check which was proven to be in the handwriting of the appellant. We think the state sufficiently assumed and discharged the burden upon it of establishing that the check was passed by appellant, knowing same to be forged.

There is complaint of the introduction of the check signed “Lee J. Marks,” -passed to the witness Davis. When there is a claim of innocent intent or lack of knowledge on the part of the accused charged with forgery or the passing of a forged instrument, under all the authorities it is permissible to prove him in possession of other forged instruments, or that he made or passed other forged instruments similar to or about the time of the one made the basis of the instant prosecution. We think the bill without merit.

Appellant’s bill of exceptions No. 7 presents the proposition that he objected to certain evidence upon the ground that it was immaterial and irrelevant. This has been held too general to call for consideration at the hands of this court.

There is. a bill of exceptions complaining of the fact that the court refused appellant’s counsel permission to talk to a witness in the presence of appellant. The bill shows that the court granted counsel permission to talk to the witness all he pleased, but declined to require the witness to talk in the presence of appellant. The witness was placed on the stand by appellant, and testified fully, and we fail to see how any injury could have resulted. It was permissible for the state to show that appellant had been legally charged in court with another offense involving moral turpitude, as affecting his credibility as a witness.

There are two hills of exception complaining of reference to the fact that appellant had been indicted for forgery of the check passed to Mr. Davis and signed “Lee J. Marks”; and to the fact that appellant was asked if he did not know he was wanted in Reeves county for said forgery. We do not perceive the merit of either complaint.

Appellant, while on the witness stand, was asked if he had not been confined in the federal penitentiary, and admitted that he had. On redirect examination by his attorney he was asked if he was not pardoned, and replied that he was paroled. Complaint is made of the fact that the court declined to permit appellant to testify what he was charged with, at the time he was put into the Leavenworth penitentiary. The bill does not show what the witness would have answered. No error is shown.

In his argument to the jury, the state’s attorney referred to the fact that appellant claimed the check was signed by John W. Clark, but that'Clark was not present, and that, if defendant wanted him, he should have had him in court. This argument was objected to. We see no merit in the objection. Appellant did claim that the check in question was signed by him for and at the instance of and upon the authority of John W. Clark. It being admitted by appellant, and being without controversy that no process had been sought to get said Clark, we see no reason why the state might not re- ' fer to the absence of said witness.

We have carefully gone over the various complaints made in this record, and, being unable to agree with any of them, the judgment will be affirmed. 
      
      S=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     