
    FRYE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 3, 1912.)
    1. Forgery (§ 37) — Prosecution — Admission op Evidence.
    The evidence in a forgery prosecution showed that a check was given to accused, F., for $2.25 on a certain bank, and that, when it was presented, the name of the payee had been changed to J., or bearer, and the amount raised from $2.25 to $7.25, and the check for the-latter amount was cashed. Held, that the evidence that the check for $7.25 was cashed at the bank was admissible, though accused was not charged with passing .a forged instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111, 112; Dec. Dig. §37.]
    2. Criminal Law (§ 404) — Evidence — Handwriting — Comparison.
    In a prosecution for forgery of a check, a bond admitted to have been signed by accused was admissible on the issue of forgery of- the check.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    3. Criminal Law (§ 516) — Confessions.
    A justice of the peace testified in a forgery prosecution that accused first told him that he borrowed the $2 which he had and afterwards told him that he made it, and, on turning out his pockets, found that he had 80 cents, and said that some one had staked him for a nickel, and that he won 75 cents at dice, that he gave a check for $2.25 which he was charged with having forged and raised to his wife, and supposed she had bought something with it. Held, that the evidence did not show a confession by accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1139-1145; Dec. Dig. § 516.]
    4. Criminal Law (§ 412) — Declarations of •Accused — Declarations Under Arrest.
    Where, when accused made certain statements to a justice of the peace, nothing had been said to him to indicate that he was going to be arrested or might be charged with an offense, such statements were admissible in evidence as against the objection that accused was under arrest when they were made.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 894-972; Dec. Dig. § 412.]
    Appeal from District Court, Austin County; John T. Duncan, Special Judge.
    Joe Frye was convicted of forgery, and he appeals.
    Affirmed.
    W. I. Hill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, tried, and convicted of the offense of forgery, and sentenced to two years and six months in the penitentiary.

Appellant objected to testimony going to show that a check for $7.25 was cashed at the Sealy National Bank on the ground that he was charged wife, raising a check from $2.25 to $7.25, and was not charged with passing a forged instrument. The evidence shows that Mr. Reinhard Dommel gave to appellant a check for $2.25 on the Sealy National Bank; that, when the check was presented, the name of the payee had been changed from “Joe Frye or bearer” to “John Jones or bearer,” and the amount from $2.25 to $7.25. As this check is traced, as originally given, into the hands of appellant, and when cashed at the bank these alterations had been made, it was admissible as a circumstance tending to show that appellant was- the person who had made the changes :-:-in. the check. It is true no one saw appellant or any other person alter the check, yet, as the amount was increased after it reached appellant’s hands, before being presented at the bank, and the case being one of circumstantial evidence, any circumstance that would shed light on the transaction is admissible. The state introduced in evidence the check, and also introduced in evidence the proven signature of appellant to a bail bond, given by him, for comparison in handwriting. While on the witness stand testifying in his own behalf appellant denied writing the name “John Jones” on the check, and being the person who altered and increased the amount of it.

On cross-examination he admitted that his signature to the bond was his genuine signature. In rebuttal the state offered the bond in evidence for comparison of handwriting, as tending to show that the same person who signed appellant’s name to the bond was the person who had changed the cheek. While proof by comparison only is not sufficient -in itself to establish that defendant is the person who altered a check, yet such facts are admissible in evidence to be considered by the jury, with other circumstances in the case. Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122; Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206; Williams v. State, 27 Tex. App. 466, 11 S. W. 481; Watson v. State, 9 Tex. App. 237.

In another bill it is claimed that; “The state was permitted, over the objection of the defendant, to have the witness W. H. Du Bose, a witness for the state, to testify as follows: T am justice of the peace down at Sealy, and remember hearing about the check that was altered. It was given by Reinhard Dommel. I saw Joe Frye Saturday a week ago. The negro first told me he had $2, and that he borrowed it. His second statement was that he made it. His first statement was that he borrowed $2 from Mr. Jackson, a colored man, and that he had given it to his wife. He said he did not have any more, but, upon turning his pocket out, found that he had 80 cents. He showed me some dice, and said that some one staked him for a nickel, and that he had won 75 cents. This was his second statement, and was before he was arrested, and he said that he gave the check that he got from Mr. Dommel to his wife, and that he reckoned she had bought something with it. He said that everything he gave her was just put around the house somewhere, and that she would come across it. That that was the way he gave her everything that he gave her. He first stated that he gave it to his wife and supposed she had spent it; that he did not change it; that the check he got from Mr. Dommel was for $2.25, and that the one be gave his wife was for $2.25.’ ” The objection was that appellant was under arrest at the time, and no statements made by him at that time were admissible in evidence. The court in approving the bill qualifies it, and states that the testimony showed the defendant was not under arrest at the time the statements were made. The defendant excepted to this qualification and we must go to the testimony.

The justice of the peace testifies that no arrest had been made at that time; that his attention had been called to the forgery of the check, and he sent for appellant, for Bob Long, and others with a view to investigating the matter, and no person had been arrested at this time, and he had arrived at no definite conclusion as to whom to charge with the offense; that, when appellant was asked about the check given him by Mr. Dommel, he said he had given it to his wife, and she had bought something with it in town; that it was- just as he received it at the time he gave it to his wife. It is perhaps true that appellant, nor any of the others sent for by the justice of the peace, would not have been permitted to go away from the control of the officers. It is also true that afterwards a complaint was filed against appellant, and he was arrested, while Bob Long and the others were permitted to go.

The statements made by appellant could not be construed to be a confession, for, if the statements were true, they would show that appellant was guilty of no offense.

At the time he made these statements, the justice of the peace testifies positively that defendant was not under arrest, and nothing had been said to him that would indicate to defendant that he was going to he placed under arrest, that, while as 'a matter of fact he was subsequently arrested, nothing had been done at this time to indicate to defendant that his statement was not believed to be true, or'that he had been given any intimation that he might be charged with an offense. Under the holding of this court in Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558, the testimony was properly admitted. See, also, Grant v. State, 56 Tex. Cr. R. 411, 120 S. W. 481.

The court did not err in refusing to instruct a verdict of not guilty. The evidence would support the verdict of the jury that appellant was guilty of the offense as charged.

.The judgment is affirmed.  