Appellant's motion for rehearing is before us, accompained by printed and written arguments of unsual cogency and length, which it would be a pleasure to print and review.
Without stating the numerous grounds urged against the former opinion of this Court, we will refer to what seem to us to be the main contentions set forth. It is necessary to a conviction in every contested forgery case, that a fraudulent intent on the part of the accused be shown by the State, and when lack of such intent, or want of identity or system is an issue in the case, or when such proof tends to connect the accused with the offense for which he is on trial or when it tends to disprove the defensive theory, or is part of the res gestae, evidence of similar transactions on the part of such accused, if such be obtainable, is permitted, and, as said by this Court in the Hennessy case, 23 Texas Crim. Appeals, 340, "The question is one of induction, and the larger the number of consistent facts, the more complete the induction is." So that, in such case, if the State choose to do so and had the power, it might show any number of similar transactions. Nor is it a valid objection thereto that such transactions cover a period of time and are not coincident with the transaction involved in the particular case on trial. Referring again to the Hennessy case, supra, and to the objections urged to the introduction of evidence of similar forgeries to the one on trial, this Court said: "That they are not papers of contemporaneous date with the alleged forged paper, is not a valid objection to them."
The State introduced a large number of checks, warrants, etc., issued by the county clerk and county treasurer of Young County, and payable to various persons, upon the back of all, or substantially all of which checks, appear endorsed the name of the payee therein *Page 84 followed by the indorsement of the name of appellant, both which endorsements, according to witnesses for the State, were in appellant's handwriting. The theory of the State was that the name of the payee endorsed on the back of each of these checks, was a forgery, committed by appellant, and that most of said names were names of fictitious persons. We think abundant evidence was offered to satisfy the jury that the names of said payees were those of fictitious persons. The genuineness of the signature of appellant, as endorsed on each of said checks, was fully established, and under our Code and decisions, a comparison of the handwriting of the proven signature, and that claimed to be forged, might be made by experts or persons who had seen the accused write, or by the jury themselves. Art. 814, Vernon's C.C.P., Haun v. State, 13 Texas Crim. App., 383; Mahon v. State, 46 Texas Crim. App., 234; Ferguson v. State, 61 Texas Crim. App., 152; Hatch v. State, 6 Texas Crim. App., 384; Barber v. State, 64 Texas Crim. App., 96. The appellant introduced the minutes of the Commissioners' Court, showing the allowance of the claim of W.A. Moreland for the amount of the alleged forged check, and by cross-examination further sought to show that the transaction was a genuine one. Such being the case, the State's right to introduce evidence of the other similar transactions, seems clear. — See Branch's Ann. Penal Code, Sec. 1412; Vernon's C.C.P., Sec. 63, p. 624.
If there were any checks introduced in evidence about which some of the witnesses were in doubt as to whether they were forgeries or not, we think the rights of appellant were fully safeguarded by the charge of the Court in telling the jury that they could not consider such evidence for any purpose, unless they were satisfied beyond a reasonable doubt that such instruments were forgeries. They were also told that they could consider such evidence only as showing intent and system (if they believed such evidence showed same.)
We are unable to see any force in appellant's contention that the account in favor of W.A. Moreland against Young County, having been approved by the Commissioners' Court and ordered paid, the check thereafter issued upon such approved account (or upon the warrant first issued in payment therefor) imports verity; or, in other words, that it was established by the judgment of said Commissioners' Court in allowing said account, that W.A. Moreland was a real and not a fictitious person, and that consequently the efforts of the State to thereafter show that Moreland was such a fictitious person, were in the nature of the collateral attack upon said judgment, and should not have been permitted. Such contention, if our serious consideration of same was desired, should have been made in the form of objections to the evidence of such witnesses *Page 85 tending to establish the fictitious character of said Moreland. However, we observe that the written and filed account in favor of said Moreland and against Young County, for $244, was shown to be in appellant's handwriting, he being then the County Judge of Young County. On the back of said account, as the same appears in evidence, is his official approval or allowance of said claim, of date January 12, 1914. It was in evidence that said claim was presented to, and acted on and allowed by the Commissioners' Court, of which he was a member and ex-officio chairman on said date, and the minutes of said court showing the allowance of said claim, were also signed by the appellant officially. Many sufficient reasons might be named why such judgment would be void for any and all purposes. If either party to a proceeding in court be not in esse at the time the same is instituted, such proceeding is void. The entire proceeding in such case is one without the jurisdiction of such court. The interest of the appellant in this claim, as maker, supporter, and sole beneficiary thereof, would disqualify him under our laws and Constitution, and make void the entire proceeding; and in any of the above instances, the judgment might be attacked collaterally.
We further observe that neither the State nor the accused were parties to the record entries in this matter, and, therefore, as to them, the judgment is not binding. We would further hold, if necessary, that the approval of the claim in favor of W.A. Moreland would in no sense be a judicial determination that Moreland was a real or living person, and that appellant in no event could seek shelter from the consequences of his act or avoid punishment therefor by such a plea.
There are other questions raised in the ingenious argument of appellant's counsel, but we do not deem it necessary to further discuss them. All conflicts in the evidence have been settled by the verdict of the jury, which does not seem to us to be without sufficient testimony to support same. We have considered all the matters presented, and have concluded that the former opinion of this court is substantially correct, and the motion for rehearing is accordingly overruled.
Overruled.
ON REHEARING. October 22, 1919.