We affirmed this judgment at the recent Austin term. Among other grounds of the motion for rehearing appellant insists that we are in error in affirming the judgment wherein we held the evidence was sufficient. Upon a further and more critical examination of the record we are led to believe this contention is sound.
The check declared upon was a forgery. The question here is, was appellant guilty of the forgery? If appellant committed the forgery, or if he was present and aided or assisted or advised another to write the instrument, he would be guilty. The State relied, as we now understand the record, mainly, if not almost exclusively, upon the testimony of experts in regard to handwriting. The evidence shows that appellant carried the instrument to the witness, Clark, and asked him to cash it. During the conversation between appellant and Clark, appellant told him that the instrument was signed by Coats. George W.P. Coats was placed upon the stand and testified that he did not sign the instrument or authorize his name to be placed to the document. It seems there were other people in that section bearing the name of Coats. However, it is shown that appellant stated to Clark that it was the Coats who lived north of Abilene and was a ranchman. No other man by the name of Coats was introduced as a witness. Coats stated the signature to the instrument was not in his handwriting. Appellant denied under oath that he signed or executed the instrument; denied all knowledge of the instrument; denied even any recollection of having the instrument or having passed it; that he was drunk during the evening and had no recollection of the occurrence whatever; but he states positively that he did not sign the name of Coats, and that the signature to the instrument was not in his handwriting. At the time appellant passed the instrument to Clark he wrote his name across the back of it. Five experts, in regard to handwriting, were introduced; after qualifying themselves, some of them stated that appellant's handwriting as shown by his endorsement on the instrument was not the same as that in the body of the instrument; some of them testified that there was a similarity between the two, and two or three of them testified that in their opinion the same man that wrote appellant's name on the back wrote the body of the instrument. This is about the substance of the case so far as the execution of the instrument is concerned.
Appellant was convicted of forgery and not of passing a forged instrument. Before appellant could be convicted of forgery it must be shown that he either himself wrote the instrument or was a principal in some way connected with the execution. This, under the statute, cannot be done alone by comparison of the handwriting where the party denies the instrument under oath. Article 794 of the Code of Criminal Procedure, is as follows: "It is competent in every case to give evidence of handwriting by comparison made by experts or by the jury; but proof *Page 181 by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath." The evidence on the part of the experts, in regard to the handwriting, is about equally balanced that the same party who wrote appellant's name on the back of the instrument wrote the body of the instrument, but if all of them had testified that in their opinion the handwriting was the same, it would not have been sufficient, under this statute, if this was the only evidence, because the statute says it would not be sufficient. There must be other evidence in order to show that appellant wrote the instrument. That he passed the instrument is conclusively shown by Clark; that appellant stated that it was a check given by Coats is testified to by Clark. It was shown with reasonable certainty that the instrument was a forgery by somebody. The fact of its being in appellant's possession and the divided testimony of the experts in regard to the handwriting constitutes the State's case, together with the further fact that Clark states appellant informed him that it was a check given by Coats.
There are some other questions in the case on very close lines not discussed in the former opinion; one was with reference to the action of the court examining a witness and the manner of it. It is contended this was error, especially in view of the fact and manner of the court in examining the witness. As we have said heretofore in other cases, the court should avoid this course of conduct. In some cases it may not be of sufficient importance to reverse the judgment, while in others it may be. For a discussion of these matters see Hopperwood v. State, 39 Tex. Crim. 15; 44 S.W. Rep., 841, and Harris v. State, 37 Tex. Crim. 441; 36 S.W. Rep., 88.
Another matter is urged, to wit: the action of the district attorney asking the witness in regard to the confessions of appellant. The matter in substance, as shown by the bill, is about as follows: When the officer was placed on the stand to lay a predicate for the introduction of the confessions, the jury was retired; after hearing the matter the court decided the confessions were inadmissible; that the jury were returned to the court room and the district attorney proceeded to ask the witness again in regard to the confessions of appellant after the court's prior ruling excluded it, forcing the appellant to object in the presence of the jury to such conduct. This character of conduct should not be permitted. See Alexander v. State, 21 Texas Crim. App., 406. This may have had a serious bearing upon the minds of the jury, leading them to believe that appellant had made confessions and he was afraid to let the jury know the facts in regard to same. This will not arise upon another trial we apprehend, by reason of the late statute prohibiting such confessions unless reduced to writing, even if warning has been given.
After a more careful revision of the record, and the suggestions in regard to the matters urged pro and con, we are led to believe that the former opinion was erroneous in affirming this judgment in regard to the question of forgery. *Page 182
The motion for rehearing is granted, and the judgment is reversed and the cause is remanded.
Reversed and remanded.
Henderson, Judge, absent.
[Motion for rehearing granted December 4, 1907. — Reporter.]