
    DUNCAN v. STATE.
    (No. 5310.)
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1919.)
    1. Forgery <&wkey;48 — Instructions; insertion OF UNAUTHORIZED AMOUNT OF CHECK.
    In a prosecution for forgery consisting in defendant’s writing in a cheek signed by prosecuting witness and placed in defendant’s hands a larger amount than authorized, an instruction that if a defendant had the right to fill in the check for any amount, or believed he had that right, or there was a reasonable doubt upon these propositions, the jury should acquit, held, sufficient'.
    2. Forgery c&wkey;>37 — Evidence of other TRANSACTIONS BETWEEN PROSECUTING WITNESS AND DEFENDANT.
    In a prosecution for forgery committed by defendant’s writing a larger amount than authorized in a cheek payable to defendant signed by prosecuting witness, evidence with reference to a note prosecuting witness had signed with defendant and had to pay the defendant’s indebtedness to the prosecuting witness held proper as bearing upon the question whether witness gave defendant authority to draw on such witness for the sum placed in the cheek.
    3. False pretenses <@=4— Forgery &wkey;>6 — Writing larger amount in check than AUTHORIZED, FORGERY.
    In a prosecution for forgery committed by the insertion in a cheek of a larger amount than defendant was authorized by maker to insert, the contentions of the defendant, appellant, that such acts would make a case of swindling and not of forgery, cannot be sustained, since if he so exceeded his authority it would constitute forgery and not swindling, and if the case be one of swindling or forgery it must be prosecuted as forgery.
    4. False pretenses <&wkey;4 — Forgery <&wkey;6— Insertion in bank check op larger AMOUNT THAN AUTHORIZED.
    In a prosecution for forgery by writing into a cheek a larger amount than authorized by its maker, the action of an employé of another bank in ascertaining from the payee bank, at the defendant’s request, whether or not the payee bank would pay any amount filled in, did not change the crime from forgery to swindling; there being nothing to show that the maker of the check authorized the payee of bank, to make such statement to the officer of the other bank. *
    5. Forgery <&wkey;21 — Depenses; securing an INNOCENT AGENT TO PILL OUT CHECK DOES NOT RELIEVE DEPENDANT.
    In a prosecution for forgery consisting of writing in a check a larger amount than authorized by its maker, the fact that the defendant used an innocent agent to fill out the fraudulent check which defendant indorsed did not release defendant.
    6. Forgery <&wkey;42 — Evidence; dependant’s INDORSEMENT OP PORGED CHECK
    In a prosecution for forgery consisting of writing a larger amount in a check than the maker signing it had authorized defendant to write, defendant’s indorsement of the check was proper evidence.
    Appeal from Griminal District Court, Williamson County; James R. Hamilton, Judge.
    Seth Duncan was convicted of forgery, and he appeals.
    Judgment affirmed.
    J. F. Taulbee, of Georgetown, for appellant.
    Wilcox & Graves, of Georgetown, and E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The facts show that R. F. Coleman gave appellant a signed but unfilled check with authority to fill in the check for an amount not to «exceed $40. Appellant’s contention is that he had authority to fill in the check for $1,250 and include incidental expenses in making the trip from Cameron, where the check wad given, to Granger, where it was filled out and presented for payment. The check was made out for $1,262. When appellant arrived at Granger from Cameron, he presented himself at the bank with the unfilled check, left it with Stefka, who was an officer of the bank, requesting Stefka to communicate with the bank at Cameron to ascertain if they would honor the Coleman check for any amount, stating he would return later. Appellant left the bank, and later returned. In the meantime Stefka communicated with the bank at Cameron and received information over ' the phone that they would honor the Coleman check for any amount. Stefka so informed appellant upon his return to the bank. Stefka, at the instance of appellant, filled out the check for $1,262. Appellant then indorsed the check. The money was placed to appellant’s credit, and later during the same evening drawn out. Appellant’s contention, with reference to the authority to fill in the check, was, substantially, that he, Coleman, and Mrs. Coleman had been warm friends; that Coleman was in the service of the penitentiary at Huntsville while appellant was an inmate under the conviction for murder, and later had assisted in securing appellant’s 1 pardon. Upon receiving the pardon appellant went to the Coleman home in Cameron. The relations between Coleman and his wife and appellant were shown to be intimate, if not confidential. Appellant’s contention was that Coleman was jealous of his wife and secured appellant’s services to follow her on a trip she made to ascertain if there was anything of an illicit character connected with her trip. At Somerville about 45 or 50 miles from Cameron, appellant ascertained and reported to Coleman that his wife was there registered as the wife of another man, and occupied the same room. In other words, that he had discovered evidence of illicit conduct on her part, returned and reported to Coleman.

That Coleman followed this up by a visit himself to Somerville. For this service on the part of appellant Coleman agreed to pay him $2,500. Ujdon Mrs. Coleman’s return to Cameron, she secured a letter written by her husband to another woman of a very compromising nature, which brought about trouble in the Coleman family. Coleman thereupon suggested to appellant that he thought $1,250 was a sufficient amount to pay for this service under the circumstances. There is evidence, also,.that Coleman signed a note, with appellant for $250, which Coleman had to pay, and that this note had been placed by Coleman in the hands of an attorney for collection from appellant, and had matured into a judgment against appellant in favor of Coleman. The question finally turned itself, to some extent at least, upon the truthfulness of the statements and contentions by Coleman on one side and appellant on the other with reference to the amount to be placed in the check. These matters were submitted to the jury, and we think under appropriate instructions, and not only so, but special instructions were given at the instance of appellant more fully submitting these matters. The jury was told, in effect, that if appellant had the right to fill in the check for any amount, or believed he had the right to fill in the check, or there was a reasonable doubt upon these propositions they should acquit. We think the charge sufficiently presented this phase oí the case.

There was also exception taken to the introduction of evidence with reference. to the $250 note, and the transactions occurring with reference to it. This seems to have been brought out from Coleman on cross-examination by the defendant; but we are of opinion that it was proper testimony as bearing upon the question as to whether Coleman had given appellant authority to draw on him for $1,250, when this note was due and unpaid.

There was also objection to the evidence of Stefka to the effect that it was the custom of banks to handle checks through the clearing house. Stefka testified that the check went from his bank to a bank at Waco, and thence to the bank at Cameron.

There are quite a lot of detail matters in the record that are unnecessary to recapitulate. All these contentions of appellant are largely based upon the proposition that, conceding the state’s case and that Coleman signed the check and authorized appellant to fill it out, it would be a case of swindling and not of forgery. To this proposition this court cannot assent. In Hopper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St Rep. 926, a very similar case, the court decided the question adversely to appellant's contention. This seems to be the well-recognized .rule in cases of this character. Cases supporting this proposition will be found in note 21, on page 1373 of volume 19 of Cyc. Quoting from the last-cited authority, we find this language:

“Where a person procures the signature of another upon a blank paper, and, without authority from the latter, writes a promissory note or ot'her apparently valid instrument above it, he is guilty of forgery.”

A number of cases are cited in note 20. Further quoting:

“And the rule is the same where an agent, having the genuine signature of his principal with instructions to write an instrument in a certain way, disobeys his instructions.”

See Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926, State v. Kroeger, 47 Mo. 552, Commonwealth v. Pioso, 17 Pa. Super. Ct. 45, and quite a number of English cases collated in the same note.

If appellant had the authority to fill out this check for $1,262 as he contended, he was not guilty of forgery, or swindling. If he did not have this authority, and that authority was limited to not to exceed $40, then it would constitute forgery in filling it out as he did. If the ease be one of swindling or forgery, the statute requires prosecution for the forgery. Branch’s Ann. P. C. art. 1425, and cases there collated.

Nor can we concede the correctness • of the proposition that the action of Stefka in ascertaining from the bank the fact that the bank would pay any amount filled in changed it from forgery to swindling. Stefka did not discuss the matter over the phone with Coleman, but he discussed it with the bank. There is nothing to show that Coleman authorized the bank to make the statement that was made to Stefka, and in fact it would seem that Coleman knew nothing about that. The statement of the bank was not binding on Coleman, unless there was an agency shown which would bind Coleman to their statement. Appellant was not charged with swindling Stefka or the Cameron bank. He was charged with forging a check by filling out the amount over a genuine signature, which is dehounced as forgqry by the Statute.

Nor is there any merit in the contention that Stefka filled out the check. Stefka filled it out at the request and suggestion of appellant, and was not aware of the fact that there was a want of authority on the part of appellant to so fill it out. In other words, appellant ■ was using Stefka as an innocent agent to fill out a fraudulent check. This did not relieve appellant. The statute provides that under such circumstances the party securing the action of an innocent agent would be guilty as a principal. Branch, Ann. P. C. art. 77.

Appellant’s contention that his indorsement was not proper evidence cannot be maintained. It is true that the indorsement was not alleged as' forgery. The forgery was alleged upon the unlawful filling out of the check. The indorsement on the check would be proper evidence as against appellant under the circumstances of this case. A great many authorities are collated by Mr. Branch in his Ann. P. O., on page 851.

We are of opinion there has been no reversible error committed on the trial of the case, and the judgment should be, therefore, affirmed. 
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