
    McCLESKEY v. STATE.
    (No. 7094.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.)
    Forgery <&wkey;43 — Evidence that party whose name was forged on check attempted to redeem it after dishonor should have been received.
    In a prosecution for passing a forged check of M., where there was evidence that defendant had previously had authority to sign M.’s checks and had done so, and that M. had told defendant, if he needed money, he (M.) would furnish it, offered evidence that, after the bank had declined to pay, M. sought to find the check and redeem it, and that M. had not repudiated several other small similar checks issued by defendant and introduced ip evidence by the rstate( should have been received as circumstances tending to show its ahthorization.
    <@3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Ered McCleskey was convicted of forgery, and he appeals.
    Reversed.
    Ben L. Cox, of Abilene, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the’ State.
   MORROW, P. J.

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

The alleged forged instrument was a check drawn on the Farmers’ & Merchants’ National Bank of Abilene, payable to E. E. Jennings, or bearer, for the sum of $10, and was signed by Claud Miller. It was uttered by the appellant, and the evidence is sufficient to sustain the finding of the jury that the appellant acted fraudulently in passing the instrument. Miller, whose name was purported to have been signed to the check, was a contractor, and the appellant was a bricklayer. He had worked for Miller on several occasions, and at the time of the alleged offense Miller was expecting to make a contract for the construction of a courthouse, and requested the appellant to remain in Abilene for a time, in order that he might be ready to go to work. Miller was anxious to have the services of the appellant, and was concerned that he should be at hand, so that there would be no difficulty in finding him and procuring his services. Miller told the appellant that, if he needed any money during his stay, he (Miller) would furnish it. The appellant had previously had authority to sign Miller’s checks, and had done so. There is no direct testimony that this authority had been specifically canceled, though there are circumstances supporting such an inference, and Miller testified that he knew nothing about the issuance of the check in question.

The appellant sought to prove that, after Miller discovered that the check had been issued by the appellant, and that the bank had declined to pay it because of the dissimilarity of the handwriting, he (Miller) sought to find the check and redeem it. Miller said that, in his conversation with the appellant, he understood and intended to convey the idea that, if the appellant needed money, it would be advanced by Miller. There is evidence that, at the time the check was. issued by the appellant, he was under the influence of intoxicating liquor; that his reputation as a law-abiding citizen was good. It occurs to us that, under the facts of the case, Miller’s efforts to find and redeem the check after it got into circulation was a circumstance tending to show that he had authorized its issuance; at least, that he regarded the conversation with the appellant such as to imply authority to obtain money which he (Miller) was willing to furnish, by signing a check upon his account’. This circumstance, in view of the previous relations of the parties and the present understanding between them, we believe should have been received in evidence. In the same connection, appellant sought to prove by Miller that he had never repudiated the check.

The state introduced several other small checks with Miller’s name signed to them, and which were issued by the appellant. Appellant offered to prove that Miller had not repudiated these checks. It is not quite clear upon what theory these checks were received in evidence. It seems, however, in view of their introduction against the appellant, that the testimony proffered would have had such bearing upon Miller’s acquiescence in the exercise hy the appellant of the authority to sign his name to the checks as entitled the appellant to have it before the jury. This is particularly true of one of the checks, issued to satisfy a fine against appellant, and which he sought to show Miller had paid.

Considering the whole record, we are of opinion that the judgment should be reversed, and the cause retried in accordance with the suggestions herein made; and it is so ordered.  