Conviction for forgery; punishment, two years in the penitentiary.
M. E. Shelly had money in a bank. She could neither read nor write, and J. B. was authorized to sign checks upon said bank in M. E.'s name. It was the State's theory in this case that appellant induced M. E. to have J. B. sign for her certain papers purporting to pertain to the getting of insurance, one of which papers was in *Page 359 reality a check upon said bank, the amount, payee, etc., in which were then blank, but which check, after being so signed, was later filled in by appellant by writing his own name as payee and inserting $989.87 in the blank left for the amount, and by filling out other blanks in same. M. E. and J. B. testified that appellant presented to them some papers which he said was an application to an insurance company, and that J. B. at M. E.'s request signed M. E.'s name to such papers; that one of the papers was folded under the other, but that the papers then signed were understood by them to pertain to insurance; that M. E. never instructed J. B. to sign for her any blank check upon the bank; nor did J. B. in signing any papers intend to sign M. E.'s name to such check.
The court charged the jury that if they found and believed that there was such blank check, and that J. B. did write upon same the name and signature M. E. Shelly at the request of M. E., and that thereafter appellant without lawful authority and with intent to injure and defraud did wilfully and knowingly fill in said check by writing words and figures thereon so that same became the completed instrument set out in the indictment, viz.: a check on said bank for $989.87 payable to appellant, then they should find him guilty.
Complaint is made of the action of the trial court in making a certain statement in the presence of the jury regarding an argument then made by appellant's attorney concerning the part of the court's charge above referred to. From the bill of exceptions it appears that after reading to the jury this part of the charge, appellant's attorney said to them: "Gentlemen of the jury: Under this charge it would not be sufficient to justify a conviction that she (J. B.) signed the signature (M. E.) on the instrument believing she was signing some other instrument, — but under the indictment and the court's charge you must find that she signed this signature on this identical piece of paper, and I challenge the jury to point out any evidence to show that M. E. directed J. B. to place said signature upon this identical piece of paper, to-wit: the check." At this point the trial court said to appellant's counsel:
"Major, that is not the meaning of that charge; at least, it is not what was intended to be charged. It was the intent to charge that if she signed the signature to the check in question believing that she was signing some other instrument, it would still be sufficient to constitute her act and deed." *Page 360
This was excepted to as an oral instruction and charge to the jury and as a comment on the evidence, and as placing a construction on the charge not in writing. When this objection was made the court further said:
"I am not charging the jury. I am simply discussing what I think is an incorrect interpretation of the charge in your argument."
This is also complained of in the bill of exceptions. We are of opinion that it made no difference in determining the guilt of appellant whether M. E. and J. B. or either of them, in signing the blank check in question, intended to sign an insurance blank; and are further of the opinion that there was nothing in the charge of the court warranting any argument that thereunder the jury could not convict if J. B. signed said document believing she was signing some instrument other than the check in question. The charge of the court was in accord with the statement made by the court to appellant's counsel at the time he made this argument, and we regard said statement as no more than calling the attention of said counsel to his mistaken interpretation of the charge. The jury are of the laity; are not learned in the phraseology of the law, and are apt to accept interpretation thereof by attorneys in whom they have confidence, and in case a mistaken interpretation of the law as stated in the charge be made, and stated to the jury by attorneys for the defense, whether by mistake or otherwise, it would be but fair both to the State and the defense for such mistake to be corrected. We recognize the force of the authorities cited in the able brief of appellant on this point, but do not believe the court below commented on the evidence or gave any oral instruction on the law. The statement of the court added nothing to the law as written in the charge. It neither added to nor detracted from the force of the evidence, nor did same express the court's opinion regarding the evidence. The record should be kept straight and the law applied correctly.
The State asked Mrs. Shelley how long before appellant made a certain visit to her, had she put this money in the bank. Objection was made and variously discussed as set out in bill of exceptions No. 4, and the court below said:
"Of course, this is not an ordinary forgery case, because it is a case of filling up, and I think the court would necessarily have to allow both sides more latitude in proving the circumstances surrounding it. I will overrule the objection to that." *Page 361
We perceive no need for discussing the complaint in this bill. The matter seems capable of no prejudice.
Bill No. 5 presents objection by appellant to a remark of the attorney prosecuting, which was as follows: "That being true, the defendant is here, and it is his privilege —." Whatever was intended was interrupted at this point. The remark was made during the development of the State's case in chief, and was objected to as a comment on the failure of the defendant to testify. Such comment made at such time, could in no event be held a necessary comment on the failure to testify, and not being otherwise referred to or brought up again during the trial, we perceive no error. Blackwell v. State,107 Tex. Crim. 65. The bill presenting this matter further sets out that the attorney making the remark stated that he had no intention in what he started to say, when interrupted, to refer to appellant's failure to testify.
Bill No. 8 complains that State's counsel referred to and discussed appellant's failure to testify, but in the qualification to said bill the argument of appellant's counsel directly alluding to the failure of appellant to take the stand, and making an extended argument on same, — is set out, and this is stated to be the reason for the argument for the State in reply thereto, complaint of which is made in the bill. We must decline to reverse in such case. Wade v. State,43 Tex. Crim. 287. Mr. Branch in Sec. 363 of his Annotated P. C., cites many authorities supporting the proposition that the accused is not entitled to complain of improper argument of State's counsel which is occasioned by and justified, by the argument made on behalf of the defendant. Williams v. State, 24 Texas Crim. App. 32; Martin v. State, 41 Tex.Crim. Rep.; Vann v. State, 48 Tex.Crim. Rep., are cited among others. We are not able to agree with counsel for appellant that his attorneys may argue as much as they please his failure to testify, and that if State's attorney replies thereto it is reversible error. Neither in Hunt v. State, 12 S.W. Rep. 737, nor in any of the cases therein cited do we have any such facts as are here. In the Hunt case, supra, if what was said by the attorney for the defense was a reference to the failure of the accused to testify, it was very remote. In the Indiana case cited in the Hunt case, supra, a statement in the opinion enjoins upon counsel for the defense as well as for the State, the duty of not discussing the failure of the defendant to testify. The Massachusetts case also cited, only says that the exemption by the Constitution and statute from *Page 362 being compelled to testify and from having failure to do so commented on, could not be affected by superfluous or irregular suggestions of defense counsel in the heat of argument. By the terms of our statute, Art. 710 Cow. C. P., the forbiddance of allusion to or comment on the failure of the accused to testify, is as binding on the defense as on State's counsel. If the attorney for the defense sees fit to override this statute and makes argument to the jury plainly intended and extended upon his client's failure to testify, we will not hold the act of counsel for the State in replying thereto, to be reversible error.
The controversy appearing in bill of exceptions No. 7 seems of so little substantial merit as affecting the guilt of the accused as that even if the reference by State's counsel to the petitions in a civil suit, — which when offered in evidence had been rejected, — had been made and not in reply to what had been said by defense counsel (which is not clear), we would not be inclined to reverse for such argument. The contents of the petitions were not stated by counsel, and the matter in evidence concerning same related only to a civil suit by Mrs. Shelly against appellant, and which she had been questioned about by defense counsel on cross-examination when she was a witness.
The facts in this case seem ample to support the judgment; in truth, same are not controverted. An ignorant woman unable to read or write her name appears to have been victimized by one pretending to be her friend.
No error of substance appearing, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.