The offense is forgery; the punishment, confinement in the penitentiary for two years.
The instrument alleged to be forged by endorsement is set out in the indictment, as follows:
"STATE OF TEXAS No. 5886
"The Treasurer of the County of Newton "Payable to the First National Bank "Newton, Texas.
order "Pay to L. A. Midkiff, or bearer the sum of Ten and No/100 DOLLARS $10.00 out of the 2nd Class Fund, being the amount allowed by the Commissioners Court of said County at its June Term, 1938, for Labor.
"Minute Book __________ Page __________ WITNESS my hand and seal of said Court at Newton, Texas, this 13 day of June, 1938
"By __________ Curtis Humphreys (SEAL) "Deputy County Clerk. *Page 391
"Approved: "6-13-38 "W. P. W. "No. 832 Second Class Registered the 13 day of June 1938 "Ward Westbrook "County Treasurer."
It was the State's theory, given support in the evidence, that appellant altered said instrument by endorsing thereon the name of the payee, L. A. Midkiff.
Appellant made a motion to quash the indictment on the ground that there were no averments therein showing the authority, if any, of Curtis Humphreys to act as county clerk, and, as such, to issue the check against the funds of the county, the contention being that there should have been a specific allegation that in the issuance of said check the county clerk acted in the performance of his duties under the law. A similar contention was considered by this court in Fry v. State,78 Tex. Crim. 435. There the check showed on its face that it had been issued by I. B. Padgett, county treasurer, the evidence showing that the forgery consisted in endorsing thereon the name of the payee. In reaching the conclusion that the indictment was sufficient in the absence of an averment that the treasurer acted in the performance of his duties under the law when he issued the check, the court said: "Appellant was not charged with forging the name of Padgett, but forging the name of J. M. Watson (referring to the payee) by endorsing his name on the check. If the check on its face purported to be a check issued by Padgett, county treasurer, on the Graham National Bank, as it did, if there were extrinsic matters not appearing on the face of the check that would render it invalid, this would render it none the less forgery for appellant to endorse the name of J. M. Watson on the check. If Watson had in fact received the check and endorsed it over to a third person, he would certainly be liable to such person, for the check on its face purported to be a valid check for the amount named. We do not care to take up and review the authorities again, as we did so quite exhaustively in the case of Dreeben v. State, 71 Tex.Crim. Rep.."
It is observed that the indictment herein alleged that Curtis Humphreys was county clerk of Newton County and that Ward Westbrook was county treasurer of said county.
It is appellant's next contention that he could not be guilty of forgery for the reason that the warrant was payable to bearer and that therefore it was not necessary that it be endorsed *Page 392 in order to cash it. It is observed that it is payable to order
L. A. Midkiff or bearer. We think it is manifest that the warrant, on its face, shows the necessity of an endorsement of the name of the payee thereon in order that same might be cashed. Be that as it may, we are of opinion that appellant's action in endorsing the name Midkiff upon said warrant, if done with the intent to defraud and without lawful authority, would bring him within the purview of the denouncement of the statute defining forgery.
Appellant filed an application for a change of venue based upon prejudice and a combination against him instigated by influential citizens residing in the county. He introduced approximately fourteen witnesses, who entertained the view that there existed in Newton County so great a prejudice against him that he could not obtain a fair and impartial trial. The State introduced twelve witnesses who expressed a different opinion. Thus it is seen that the testimony adduced upon the motion presented conflicting theories. It is the rule that, if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed on appeal unless it be made to appear that the trial court abused its discretion. See Davis v. State, 28 S.W.2d 794. We are unable to reach the conclusion that the record reflects an abuse of the discretion vested in the trial court.
Appellant brings forward several bystanders' bills of exception relative to remarks made by the district attorney in the course of his argument to the jury. It appears that on the subjects embraced in the bystanders' bills appellant presented to the trial court numerous bills of exception, which, as qualified by the court, failed to show error. Appellant undertook to except to the qualification but failed to have the trial court authenticate his exceptions. We quote from 4 Tex. Jur., 280, as follows: "A mere notation by counsel on the bill, following the judge's signature, stating that the qualifications were objected or excepted to, or that the defendant refuses to accept them because the facts therein stated are incorrect, * * * is insufficient." Again, we quote from the same text: "If the appellate court is not to be bound by qualification of a bill, objections or exceptions thereto must be authenticated by the trial judge." Appellant is in the attitude of having accepted and filed the bills of exception as qualified by the court. Hence *Page 393 his bystanders' bills were not permissible. See Drennan v. State, 109 S.W. 1090.
The court's charge appears to have adequately presented the issues raised by the evidence.
We are unable to agree with appellant's contention that the evidence is insufficient to support the conviction. The county clerk testified that the warrant had been regularly issued by him, pursuant to an order of the commissioners' court. The treasurer testified that he had registered said warrant. The payee, L. A. Midkiff, testified that he had never seen the warrant; that he had not worked on the county roads in the month of June, 1938; that he had not delivered the warrant to appellant and authorized him to endorse his name thereon. Appellant's counsel, in open court, admitted that appellant had endorsed the name of Midkiff on the warrant. Appellant did not testify, but introduced witnesses whose testimony was to the effect that they heard Midkiff tell appellant to endorse his (Midkiff's) name on said warrant. It is true that upon cross-examination Midkiff testified that he had delivered warrants to appellant without endorsing them, and if appellant had endorsed his name thereon and given him credit for the amount that it would have been all right with him. He gave this testimony in connection with his statement that he had traded with appellant for several years and often owed him money. He affirmed, however, that he had not delivered the warrant in question to appellant, as it had never been in his possession. Further, he testified that he had received no credit on his account after appellant had cashed the warrant, and had received no part of the proceeds of such warrant. In short, it was his testimony that he had not authorized appellant to endorse his name. We are constrained to hold that the evidence was sufficient.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.