Appellant insists that the evidence does not support the verdict and judgment. We discover in the testimony no sound basis for such contention. The issue was sharply drawn and *Page 394 could not have been misunderstood by the jury. The State's position was that the warrant upon which appellant endorsed the name of L. A. Midkiff was improperly issued; that Midkiff never did the work for the County which the warrant purported to have been issued to pay; that Midkiff was not entitled to the warrant, had never received it and never saw it until after it had been cashed at the bank and returned to the County Treasurer with Midkiff's name endorsed on the back of it; that Midkiff did not endorse it and did not authorize appellant to endorse his (Midkiff's) name thereon. The foregoing facts were testified to by Midkiff. On the other hand appellant did not testify, but upon the trial admitted through his attorney that he (appellant) did endorse Midkiff's name on the warrant and then called two witnesses who testified that they heard Midkiff expressly authorize appellant to endorse Midkiff's name on the warrant, and saw appellant do so under said express authority. The jury accepted the State's testimony as true. We have no right to ignore their finding.
Appellant urges that the trial court should have instructed the jury that if appellant endorsed Midkiff's name on the warrant under the belief that he had Midkiff's permission and authority so to do, he would not be guilty of forgery though in fact he had no such authority. We think the evidence did not raise such an issue. Appellant did not testify to such belief on his part, but claimed through his witnesses express authority from Midkiff to endorse his name. On cross-examination Midkiff testified to the most friendly relations with appellant; that he had on previous occasions turned over to appellant warrants to be cashed by appellant and applied to his (Midkiff's) indebtedness to appellant; that if he (Midkiff) had ever turned over any warrants without endorsing them he had no recollection of it; he was then caused to say on further cross-examination if he had done so, and if appellant had endorsed his (Midkiff's) name on them and if he received credit for the amount of said warrants it would have been all right for appellant to have so endorsed them. But he continually asserted the facts to be that he never received the particular warrant here involved, had done no work entitling him to it, never delivered it to appellant, never authorized him to endorse it, and never saw it until it had been cashed with his name already written across the back of it.
The court instructed the jury as follows: "When a person making or altering an instrument in writing acts under authority which he has good reason to believe and actually does *Page 395 believe to be sufficient he is not guilty of forgery though the authority be in fact insufficient and void."
Appellant excepted to said instruction as being the statement of an abstract proposition of law given no application in the charge, and that it should have been applied by giving in substance an instruction such as that discussed in the foregoing paragraph of this opinion.
We think the quoted excerpt from the charge cannot be regarded as an abstract statement of a legal proposition. It appears to us that the court made application of it in the next succeeding paragraph of his charge as follows: "If you should believe from the evidence that L. A. Midkiff gave the defendant W. H. Murry, Sr. his consent to sign his name to the warrant in question, or if you have a reasonable doubt thereof, you will find the defendant not guilty." Of course, it is impossible for us to know what was in the court's mind save as we gather it from the facts and the language employed by him in his instructions to the jury. He was dealing with a situation which the evidence presented as follows: Midkiff disclaimed ever having received the warrant or being entitled thereto, and if this were true he could not rightly collect the money which the warrant called for, yet appellant was claiming through his witnesses that Midkiff authorized appellant to endorse it. We draw the inference that the court may have thought the jury should be advised that if Midkiff gave his consent for appellant to place the endorsement on the warrant it would protect appellant against a forgery conviction even though Midkiff himself might have no legal right to cash the warrant.
Believing the proper disposition has been made of the case the motion for rehearing is overruled.