
    FRY v. STATE.
    (No. 3878.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    1. Forgery &wkey;>29 — Forging Check — Indictment.
    An indictment charging accused with forging a check drawn by P., the county treasurer, by forging the indorsement of the payee thereon, was not insufficient for failure to allege facts showing P.’s authority to act as treasurer and to issue checks against the funds of the county, since accused was guilty of forgery if he in fact forged the payee’s name to a check valid on its face, though there existed facts not appearing on the check which rendered it invalid.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <&wkey;29.]
    2. Criminal Law <&wkey;372 — Forging Check-Other Forgeries — Admissibility.
    In a prosecution for forging the payee’s name to a check issued by the county treasurer in payment of a warrant issued for road work, it was admitted that a large number of checks introduced in evidence were issued by the treasurer, and that the indorsement of accused’s name thereon was accused’s signature. The evidence tended to show that accused, as presiding judge of the commissioners’ court, O. K.’d an account made out for road work, which was presented to the county clerk who issued a warrant on the treasurer therefor, the treasurer issuing a check; that the check came into accused’s hands, who indorsed the payee’s name, as well as his own, thereon; that all the other cheeks introduced were obtained and indorsed with accused’s name in the same way, and accused cashed many of them; and that the names of the payees were in the handwriting of accused. Nearly all of the payees were fictitious, those who were not swearing that they did not receive or indorse the checks. Held, that such other checks were admissible in evidence, as showing a system which tended to prove the crime in question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    3. Criminal Law &wkey;>636 — Jury Disagreeing — Remarks by Court in Accused’s Absence.
    Where, in a prosecution for forgery, the jury after retiring came into court announcing that they could not agree, and requesting to be discharged, and accused having left the court, the judge made remarks to the jury to the effect that trials were expensive, that they, and not the court must decide the case, and that while not wishing to punish them or extort a verdict, he desired them to return and deliberate further, such action was not error, since under his bond given as authorized by statute for remaining until verdict is returned, it was accused’s duty to remain in court while the jury was out, and his voluntary absence therefrom did not require the court to delay proceedings until his return.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. <&wkey;>636J
    4. Forgery &wkey;>16 — Passing Forged Instrument-Submission to Jury.
    Where accused indorsed the payee’s name to a check issued by the county treasurer for a road warrant, and indorsed his own name thereon in order to cash it at the county depositary bank whose officials testified to the custom of requiring the person collecting, a check to indorse his name thereon, and accused’s indorsement was the last appearing on the check, it was not error for the court to submit to the jury the count in the indictment charging accused with passing a forged instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 51-53; Dec. Dig. <S=»16.]
    5. Criminal Law- <&wkey;351 — Forgery — Attempt to Suppress Evidence — Admissibility.
    In a prosecution for forgery, evidence that accused, a county judge, after his indictment for forging the name of the payee to a check issued by the county treasurer, visited the courthouse to get possession of a number of other checks, together with that in question for the purpose -of suppressing evidence, was admissible where the court limited the evidence to showing the visit, its purpose and the seriousness of the effort to suppress.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. &wkey;>351.]
    6. Criminal Law <&wkey;857 — Accused’s Failure to Testify — Jury Discussion.
    Where, after their retirement in a forgery prosecution, the jury discussed the failure of accused to testify in his own behalf, saying they thought it would be right for him to so testify, and that if he was not guilty he could have got up and said he was not, and such discussion occurred a number of times, it was ground for a reversal of the judgment of conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. <&wkey; .857.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    E. W. Fry was convicted of forgery, and he appeals.
    Reversed.
    Edgar Scurry, of Wichita Falls, Arnold & Taylor and Fred Arnold, all of Henrietta, and Ramsey, Black & Ramsey, of Austin, for appellant. P. A. Martin, Jno. C. Kay, and Leslie Humphrey, Dist. Atty., all of Wichita Falls, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was tried under ran indictment charging him with forgery and passing a forged instrument. The conviction was applied to the count charging forgery. The instrument alleged to be forged by alteration is as follows:

“I. B. Padgett, County Treasurer of Young County.
“No. 3515. Graham, Texas, 10 — 21—1013.
“Pay to J. M. Watson or order $154.00, one hundred and fifty-four & no/100 dollars.
■‘To the Graham National Bank, County Depository.
“[Signed] I. B. Padgett, County Treasurer.”

That appellant altered said instrument by indorsing thereon the name of the payee, J. M. Watson, thus making the check payable to bearer.

Appellant moves in this court to quash the indictment on the ground that the indictment does not show that the instrument, prior to the alteration, was an instrument possessing legal efficacy and obligation, in that there is no allegation of the facts showing the authority, if any, of I. B. Padgett to act as county treasurer, and as such, to issue this cheek against the funds of the county; the contention being that there should have been a specific allegation that I. B. Padgett was the duly qualified and acting county treasurer of the county, and that in the issuance of said check he acted in the performance of his duties under the law— that all the facts which would render the county legally liable for the amount of the check should have been affirmatively alleged. Appellant was not charged with forging the name of Padgett, but forging the name of J. M. Watson by indorsing his name on the check. If the check on its face purported to be a check issued by Padgett, county treasurer, on the Graham National Bank, as it did, if there were extrinsic matters not appearing on the face of the cheek that would render it invalid, this would render it none the less forgery for appellant to indorse the name of J. M. Watson on the check. If Watson had in fact received the check and indorsed it over to a' third person, he would certainly be liable to such person, for the check on its face purported to be a valid check for the amount named. We do not care to take up and review the authorities again, as we did so quite exhaustively in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501. In. the case of King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792, the authorities are also reviewed, and under the authority of those two cases the instrument in this case, on its face, being a valid instrument, would make appellant guilty of forgery if he indorsed the name of J. M. Watson thereon. It is not customary for a check to bear on its face that it is issued by virtue of article so and so of the Revised Statutes, and the person who signed it is the duly elected, acting, and qualified treasurer of a given county, and no person would look for such averments in the face of a check.

Appellant contends that it was error to admit certain other checks in evidence, which it was contended appellant had also forged, in a similar manner in which it was alleged he committed this forgery; that evidence of other crimes committed by him, if he did do so, should not have been admitted. Usually this is the rule, but the exception to the rule is as well recognized as the rule itself. In the statement of facts it is alleged that some 500 or 600 of these other checks were admitted in evidence, while in the bills of exceptions complaining of the matter it is recited that there were about 150 of these other similar checks admitted. The number is immaterial. If one was admissible, then all were admissible, under the agreement we find in the record. It reads:

“It is agreed by counsel and it is admitted by the defendant that the entire bunch of warrants purporting to be issued by the county clerk of Young county and his deputies and the entire bunch of checks purporting to be issued by I. B. Padgett, county treasurer of Young county and drawn on the Graham National Bank, are each and all the genuine warrants, so issued by the clerk, and that the checks are the genuine checks of I. B. Padgett, drawn by him or by his authority, and that the indorsements appearing on the back of said checks, as E. W. Pry, are the genuine indorsements and signatures of the defendant, E. W. Pry.”

Thus it is seen that after this admission was made, about the only issue left for the jury to decide was: Was the indorsement of J. M. Watson forged, and, if so, did appellant forge that name? Appellant introduced evidence tending to show that if the name was forged, he did not forge it. At his instance J. P. McKinley testified:

“I have seen some of Judge Pry’s [appellant’s] handwriting. Prom having seen his signature and having seen his handwriting, I think I would know his handwriting if I were to see it. I could not swear that the ‘J. M. Watson’ up there is in Judge Pry’s handwriting. Prom my observation and experience with Judge Pry’s handwriting, I do not see any similarity. I do not see anything that would impress me that he wrote that name.”

He had other witnesses testify in substance the same thing. On the other hand, J. S. Oglesby testified for the state he was an expert accountant; that he had made a study of handwriting for 19 years. He goes into detail as to the way he identifies signatures, and says that in his opinion appellant wrote the indorsement “J. M. Watson” on the check. He also testified he had examined all the checks introduced in evidence, and that in his opinion “E. W. Pry wrote the indorse-ments upon each of the checks” introduced in evidence. Other witnesses gave testimony that would authorize the jury to believe that appellant wrote the indorsements. Thus it is seen the issue was squarely drawn as to whether or not appellant forged the name of J. M. Watson on the cheek, and all evidence which would legitimately tend to show that he did do so would be admissible. The evidence for the state would tend to show appellant was county judge of Young county; that an account was made out for road work for the amount of this check in the name of J. M. Watson, and it was marked “O. K.” by Judge Pry as presiding judge of the commissioners’ court; that it was then presented to the county clerk, who issued a warrant on the treasurer for that amount, and the treasurer gave the check payable to the order of J. M. Watson upon which this charge of forgery wás presented. This warrant issued by the county clerk, and the cheek issued by the treasurer, is traced into the hands of appellant, and in addition to the indorsement of “J. M. Watson,” it has his name indorsed thereon, which indorsement appellant admitted to be genuine. All the other cheeks introduced in evidence, issued to various people, are shown to have been obtained in the same way, and bear the genuine indorsement of appellant. The evidence shows where he used and cashed many of them. The testimony for the state is that the indorsements made on all the checks, the various names of the payees, are in the handwriting of appellant, but whether indorsed by him or not, it is shown he passed many, if not all, of them, and received the proceeds. Thus a system is shown of presenting accounts for road work against the county, extending over 2 years or more, for which the evidence would justify a finding that no work had been done on the roads; that in nearly every instance they were issued in the names of persons whom the road superintendent says did not work on the road; that persons by such names could not be found in the county, except in four instances, and in these four instances the men swear they did not receive the checks and did not indorse them; yet they are all indorsed with the name of the person appearing on the face of the check as payee, and Mr. Oglesby says indorsed in the handwriting of appellant, and in addition thereto are indorsed “E. W. Ery,” which indorsement appellant admits to be genuine. In our opinion if there ever was a case where other crimes became admissible as tending to show a system of forgery being practiced, this is such a case. Such evidence would enable the jury to pass on the question of whether or not appellant wrote the name of J. M. Watson on the check in this case and passed the same. It would be a circumstance tending to show that he did so. Dugat v. State, 72 Tex. Cr. R. 40, 160 S. W. 376, and cases cited; McGlasson v. State, 37 Tex. Cr. R. 620, 40 S. W. 503, 66 Am. St. Rep. 842; Taylor v. State, 47 Tex. Cr. R. 101, 81 S. W. 933.

Of course, when the state offered this proof, appellant should be, and was, permitted to offer proof that the signature on none of the checks was in his handwriting. The court in his charge limited the purpose for which such checks could be considered by the jury, and instructed them:

“You cannot consider for any purpose any of such cheeks, other than the J. M. Watson check, except such [if any] as you may find and believe from the evidence, beyond a reasonable doubt, were altered by the defendant, without lawful authority and with intent to injure and defraud.”

Therefore it was unnecessary to give the special charge requested on this issue.

By a bill it is made to appear that after the jury had been considering the case for some 40 hours, they came into court and requested that they be discharged' — that they did not think they could agree on a verdict. The appellant was not present at this time, and the court in answer to such request stated to the jury:

“Gentlemen, all jury trials are attended with considerable expense. This matter has to be decided by a jury. The court cannot decide it, and it seems to the court that you are just as capable of deciding it as any other jury. The court is not keeping you together as a matter of punishment, nor to try to extort from you a verdict either way. I don’t want any juror to render a verdict that he does not consider fair and honest, or one that is against his conscience, and if a juror should return a verdict that he did not consider fair and honest, or one that was against his conscience, the court would not receive it if he knew it. It might be that by a further deliberation of this case you could arrive at some conclusion one way or the other, and I will ask that you retire and further consider of your verdict.”

Appellant contends it was error for tlie court to make any such remarks to the jury in his absence. This might toe such a matter as appellant could complain of, as occurring in his absence, prior to the enactment of those xjrovisions of the statute authorizing him to remain on bond until the verdict of the jury is returned, and authorizing the court to receive the verdict in his absence if he intentionally absents himself from the court. A person on trial is supposed to and should have as much interest in a case as the trial judge, and it is his duty under his bond to remain in attendance on the court while the jury is out considering his case. If he intentionally and deliberately walks out of the courtroom and remains away, he cannot and should not expect the court to delay the proceedings to await his pleasure in returning to the courtroom. The above remarks are not of a character that could have been injurious to appellant, but were proper to be made to the jury when they asked to be discharged.

We think there was ample evidence authorizing the court to submit to the jury the count charging appellant with passing a forged instrument. The check was indorsed by him, and paid at the bank, and the bank officials testify it was their custom to require the person to whom they paid a check to indorse his name thereon. Appellant’s indorsement was the last appearing on the check, and the court did not err in submitting this count, and refusing the special charges instructing the jury not to consider that count. The verdict was applied to the count charging forgery.

It appears that after appellant was arrested he and some friends went to the courthouse to get possession of the checks on which the indictments were based-—the state’s contention being that it was an effort to destroy and suppress testimony. On this visit appellant is shown to have been present, and a shooting occurred in which two men were killed, and another injured. No effort was made to show that appellant was guilty of murder on that occasion, but on the other hand it was in evidence that he had been tried and adjudged not guilty of that offense. No details on another trial should be gone into further than to show tile visit, the purpose of the visit, and the seriousness of the effort. This much of the testimony was admissible, and the court did not err in so holding. The court properly limited the purpose of the testimony. Mr. Wharton, in section 74S, says the suppression or destruction of pertinent testimony is always a prejudicial circumstance of great weight; for, as no act of a rational being is performed without a motive, it naturally leads to the inference that such evidence if it were adduced would operate unfavorably to the party in whose power it is. Evidence to suppress testimony is admissible as a circumstance of guilt the same as flight, evading arrest, etc.

The only other question discussed in appellant’s brief, and the only one we deem it necessary to discuss, is the one which contends that the jury discussed appellant’s failure to testify while considering the case, and this bill, we think, presents error. The only case the state cites as holding that the bill presents no error is Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 365. We think the Cooper Case correctly announces the law, but the facts in this case are wholly different from the facts in that case. In this ease one juror, Mr. Dodson, testified:

“Q. State to the court whether or not you heard anybody refer to his failure to testify while you were in the jury room. A. Yes; I did. Q. State to the jury what was said. A. Well, they said that they thought that it would be right for him to testify in his own behalf. Q. Do you know who it was that said that? A. There were three or four said it, but I could not get up and point out the men. Q. Could you tell us how many times you heard mention made about his failure to testify in his own behalf? A. Well, every day. Q. About how often would you think that occurred? A. Well, I would not like to say how many times a day, but mighty near every time we would get to arguing it was brought up.”

Another juror, Mr. Roland, testified:

“Q. Mr. Roland, state whether or not upon the trial of this case you heard anybody refer to the fact that E. W. Fry did not testify and what they said. A. Oh, I do not know what they did say; they said that if he was not guilty, he could have got up and said that he wasn’t, etc.”

Every juryman who testified says that the fact that appellant - did not testify was mentioned. Some say they heard it only once and it was suppressed. Others testify they heard it mentioned four or five times.

For the reasons indicated, the judgment is reversed, and the cause remanded.

DAVIDSON, J.

I agree to the reversal on ground stated, and believe there are other grounds for reversal, and may add some reasons.

I do not believe either the extraneous alleged offenses or the details thereof should have been admitted; also that, having admitted these matters, appellant was entitled to his witnesses to meet and counteract the force of such admitted alleged offenses. 
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