Appellant was convicted of forgery, his punishment being assessed at confinement in the penitentiary for three years.
His contention is: first, that the evidence is not sufficient, in that he was convicted upon the testimony of L.H. Tyler, whom he alleges in his motion for new trial, did not qualify as an expert on handwriting. Tyler testified that the same person who wrote the name of appellant in blank on the check alleged to be forged was the same person who wrote the name of the payor A.A. Koup, that is, the handwriting is by the same person. There was no exception reserved to the testimony of Tyler, and this matter is brought up only as a ground in the motion for new trial. The statement of facts discloses that Tyler was an expert in handwriting, and was the paying teller of the American Exchange National Bank. We are of opinion that Mr. Tyler was an expert, as tested by this record, and inasmuch as appellant did not except to the admission of this testimony, this question can not be raised on the motion for new trial in the manner sought. It is true that if this was all the testimony the State relied upon, there might be a question as to its sufficiency to sustain the conviction.
This brings us to the second ground, which is, that the evidence is wholly insufficient to warrant a conviction, there being no positive proof that the defendant signed the name of A.A. Koup, except the testimony of Tyler. We are of opinion that the evidence is sufficient to show that appellant is guilty of the forgery. Tyler testified that on the morning of the 12th of May, 1908, appellant came to the bank where he was at work and exhibited to the witness a draft drawn on the Commonwealth Trust Company at St. Louis, showing him at the same time a pass book of said Trust Company, and claiming that he had money there. It was ascertained subsequently that appellant did not have any money on deposit with said Commonwealth Trust Company. The witness took appellant to the collection department and introduced him. In a short while, and without leaving the Bank, appellant returned to witness Tyler and requested him to cash a *Page 127 check for $150 on the Cleveland National Bank at Cleveland, Oklahoma, which was signed "A.A. Koup." This is the check appellant is charged with having forged. Witness requested appellant to indorse the check. Appellant went to the desk in the center of the bank and was gone about two minutes and returned with the check indorsed. Witness did not see the appellant indorse the check, but when he returned with the check indorsed, witness cashed it. Then follows the statement in the statement of facts that witness qualified as an expert on handwriting and stated in his opinion, the handwriting on the check in which the name A.A. Koup was written was the same as that in which the indorsement on the back of the check was written. A.A. Koup testified that he did not sign the check; that he had never seen appellant; that he lived in New Mexico, but had a hardware, implement and vehicle business in Cleveland, Oklahoma, and that his son was the only one authorized to sign his name, and he always signed A.A. Koup with his own name." Witness was not in Cleveland, Oklahoma, on the 12th of May, 1908, but his son managed the business there. Lawrence Koup testified that he was the son of A.A. Koup, who owned a hardware business in Cleveland, Oklahoma, on the 12th of May, 1908; that he managed the business for his father; that he did not sign the check shown him, did not authorize the defendant nor any one else to sign it, and had never seen the check until it was sent to Cleveland for collection; that it was on one of their blanks, and that after appellant left Cleveland, he discovered that some of their blank checks had been torn out of a check book. He further testified that appellant was in Cleveland on the 12th of May, 1908, and was there about a week; that he was there to see Raymond Meade, who was employed by witness to assist him in his father's business. That there is no A.A. Koup in Cleveland, Oklahoma, and that the whereabouts of Raymond Meade was then unknown to the witness; that Meade had continued in his employment for some time after appellant was there. Appellant himself testified that on the morning of the 12th of May, 1908, he went to Cleveland, Oklahoma to collect $35 from Raymond Meade, the young man who was working at A.A. Koup's place of business; that he collected the money and started to the hotel to get his grip with the view of catching the train, but before reaching the depot the train left; that he stayed in town that afternoon, and seeing what he considered a bargain, he purchased a team of horses for $200, hired a buggy from the livery stable and went driving with Raymond Meade; that Meade suggested that he (Meade) could sell the horses if he (appellant) desired to sell them; that they then drove to a residence which Meade said belonged to A.A. Koup, and called a man out and introduced him as Mr. Koup; that a sale was made for $300, and defendant then went to the hotel for supper and Meade and the other man went to write out the checks; that defendant told them to make *Page 128 out two checks for $150 each; that it was then about 6 o'clock p.m. and the banks were closed. That defendant and Meade went over town to cash the checks but were unable to do so; that appellant caught the early morning train of May 13th, arriving at Dallas in the early afternoon of the same day and had the transaction with Tyler testified about by Tyler. Appellant left Dallas that night for San Antonio, cashed the other check for $150 there, and then went to West Texas, where he was arrested and brought to Austin for forgery; that he was also wanted in San Antonio for passing the other check on the Cleveland National Bank for the sum of $150, signed by A.A. Koup. This is the statement of facts. We are of opinion under this testimony that the State has sufficiently made out a case to legally justify a conviction.
Appellant urges also that he was not subject to prosecution in Texas because the forgery, if committed, was in the town of Cleveland, Oklahoma. Under our statute it would make no difference if the forgery was committed in Oklahoma, inasmuch as he passed the check in Dallas. See article 225 Code Criminal Procedure, which reads as follows: "The offense of forgery may be prosecuted in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed," etc.
Finding no such error in the record as requires a reversal of the judgment, it is ordered that the same be affirmed.
Affirmed.
ON REHEARING. October 27, 1909.