The attitude of a defendant who waives his constitutional right and takes the stand as a witness in his own behalf is well expressed by Mr. Branch in section 147, page 83 of his Ann. P. C. of Tex., and many authorities are cited supporting the text, among them being Huffman v. State, 28 Texas App., 177, 12 S.W. 588; Jackson v. State, 33 Tex.Crim. Rep.,26 S.W. 194, 622, 47 Am. St. Rep., 30. He states the rule as follows: "When defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case, his failure to testify on a former trial or hearing, and the like."
It is apparent from the many holdings of our own court that when a defendant takes the witness stand he subjects himself to all legitimate and proper cross-examination. Whether or not the court erred in requiring appellant to write before the jury at the instance of the state, turns then upon the question as to whether that was proper cross-examination. *Page 384
We quote from Corpus Juris, vol. 22, sec. 888b, as follows: "The person whose handwriting is in question cannot be permitted to write something at the trial and offer the specimen so prepared as a standard. It has been said that the court will not, as a rule, order the person whose writing is in question to write in court at the suggestion of counsel, but it has power to make such an order, in which case the standard so obtained may be used, and the better view appears to be thatwhere a witness has denied what purports to be his handwriting,he may on cross-examination be called upon to write in orderthat such writing may be compared with the disputed writing forthe purpose of contradicting him. Where a signature has beenwritten in open court by the person in question at the requestof the opposite party, the party calling for the writing mayintroduce it in evidence." (Italics as they appear in the above quotation, are ours.)
Upon the complaint made by appellant of permitting the jury for the purposes of comparison to use the writing of appellant made upon the trial with that contained in the druggist's record there appears in Chester v. State, 23 Texas App., 577,5 S.W. 125, 127, a statement which would appear to be against the view expressed in the opinion of affirmance, but when the case is analyzed we do not regard it as out of line with the conclusion announced in the present case. Chester was charged with the forgery of a draft purporting to be drawn in his favor and signed by G. M. Salenger Bro. upon the First National Bank of Leavenworth. Chester requested a party in Cameron to cash the draft, exhibiting to him a letter which purported to be from Tom H. Petters advising Chester that he was enclosing to him the draft in question. Chester signed his name as an indorsement on the back of the draft. An expert witness testified that in his opinion the same party who wrote the name of W. W. Chester on the back of the draft also wrote the name of the drawer on the draft, and also that it was his opinion that he had written the letter purporting to be signed by Petters. The court held that evidence with reference to Petters' letter and the envelope in which it purported to have been received by appellant was permissible because it was all res gestae of the attempt to pass the draft, but in the opinion used this expression: "It was error, however, to permit the Petters letter and envelope to go into the hands of the jury, to be compared by them with and prove the handwriting on said draft." When the facts of the case are understood it is apparent that the holding of this court in that case was correct; the only admitted or proven signature of Chester was his name written upon the back of the draft. The Petters signature was not an admitted, nor a proven, writing of appellant, save as testified to by the expert as a matter of comparison. The fact to be determined by the jury was whether Chester had signed the name of Salenger Bro. to the draft, and of course, it was not proper to submit to the jury for the purpose of comparison *Page 385 the signature on the Petters letter which was not an admitted or proven signature of accused. See article 731, C. C. P.
Believing the opinion of affirmance has correctly decided the case I record my concurrence therein in connection with the observations here made.