Hanson v. State

KRUEGER, Judge.

The offense is passing a forged instrument. The punishment assessed is confinement in the State penitentiary for a term of two years.

The record shows that on the 24th day of February, 1939, appellant appeared at the store of the Wilson Grain Company in Coleman County and attempted to pass to the manager thereof the following check:

"THE FIRST NATIONAL BANK OF HUBBARD, TEXAS

“February 22, 1939.

“Pay to J. C. Roberts or order__________________________________________$22.50

Twenty-two and 50/100________________________________________________

“W. E. Sanders”

The check was endorsed as follows: “J. C. Roberts, Santa Anna.”

Mr. Wilson became suspicious, declined to accept the check and called the officers. The sheriff accosted appellant; told him who he was, and invited him to his office where he stated that he desired to speak to him. On the way, the appellant took the check in question from his pocket, undertook to swallow the same, but the sheriff knocked him down and with the aid of some other officers, obtained the check. In about 20 or 30 minutes, appellant made a voluntary confession to the county attorney, in which he admitted that his name was Oscar Hanson and that he wrote the check in Coleman, Texas, and signed the name of W. E. Sanders thereto; that he did not know anyone by the name of W. E. Sanders. That he endorsed the check by writing the name of J. C. Roberts on the back thereof. On the same day and only a few hours prior to the time he attempted to pass the check in question, he passed a check, similar in every respect to the one in question, to Roscoe Brooks in Brownwood, Texas.

On his trial, appellant took the witness stand and testified that he obtained the check from one J. C. Roberts at Fort Worth on the 23d day of February, 1939, as part payment for nine calves. That Roberts authorized him to write his name on the back of the check, because he had no pen or pencil with him with which to make the endorsement. He also testified that at the time he made the purported confession he was dizzy and did not know what he was doing. That the officers had just knocked him down and choked him. That sometime after his arrest he wrote to W. E. Sanders at Hubbard, Texas, informing him of the trouble that he was in on account of the check. That Sanders replied to the letter and returned the amount of money specified in the check. He offered the letter which purported to have been written by Sanders in evidence. In his testimony relative to the sale of the calves to Roberts, and the authority to endorse the checks, he was supported by the testimony of Mrs. Susie Wilson. At the conclusion of the testimony, appellant sought to have the court instruct the jury to return a verdict of not guilty on the grounds that the evidence was insufficient. The court declined, and in this we think he was justified. There was an abundance of evidence upon which the jury could reasonably base their conclusion of his guilt.

By bill of exception number one, appellant complains of the action of the court in overruling his first application for a continuance based on the absence of J. C. Roberts and W. E. Sanders of Hubbard in Hill County. He alleged in his application that he expected to prove and would prove by Sanders the sale of the calves and that he, (appellant), had the authority to endorse the checks as above described. That he expected to prove by Sanders that he, Sanders, issued the checks payable to J. C. Roberts. Process was duly issued, but the sheriff of Hill County stated in his return that no such persons lived at Hubbard; that he could find but one J. C. Roberts, who resided at Mt. Calm in Hill County, and but one W. E. Sanders, who resided at Hillsboro, both of whom had been summoned by the State. The motion for continuance was further controverted by the State, and the sheriff also testified that he knew there was no other Sanders or Roberts in Hill County. A number of other persons from Hill County, including some from Hubbard, testified that no such person as W. E. Sanders lived at Hubbard. The sheriff testified that he even searched the tax rolls for the names of the persons in question but was unable to find them thereon. The cashier of the bank, E. H. Brown, testified that the Sanders and Roberts called by the State were the only ones he knew of by that name living in Hill County. Both W. E. Sanders and J. C. Roberts took the stand and testified that aside from themselves, (who appeared to have no connection with the transaction whatsoever), there were no other persons in that county by the same name. While it is true that the facts which appellant alleged he expected to prove were very material to his defense, the proof as to the existence of such persons is very doubtful to say the least. They appear to be more imaginary than real. Under these circumstances, we would not be justified in disturbing the ruling of the trial court thereon.

By bill of exception number two, appellant complains of the admission in evidence of his purported voluntary confession, on the ground that it was not freely and voluntarily made. That it was obtained by force, duress and the like. This issue was controverted by the State’s testimony and the issue thus made was submitted to the jury by a proper charge. Consequently appellant has no just grounds for complaint. See Blake v. State, 7 S. W. (2d), 579.

Bills of exceptions numbers 3, 12, and 13 relate to the action of the district attorney, who on cross-examination of the appellant confronted him with some blank checks of various banks which appellant admitted that he had. He objected to any and all questions relative to the checks, other than the checks in question, on the ground that it had no bearing on the case, would necessarily encumber the record and tend to prejudice the jury against him. No objection seems to have been made, however, on the ground that these checks had been obtained without a search warrant, according to these bills as they are qualified by the court. The court further states in his qualifications that there was no evidence offered that the checks were taken without a search warrant and while appellant was under arrest. That his purpose in admitting the evidence was to show the intent of the defendant. It is our opinion that the bills as thus qualified fail to reflect reversible error. See Escue v. State, 106 Tex. Crim. Rep. 506, 18 Tex. Juris, p. 71.

By bill of exception number four, appellant complains of the testimony given by Roscoe Brooks to the effect that on the 24th day of February, 1939, appellant came to his place of business to buy some baby chickens to be delivered to him at Blanket, Texas. That appellant gave him a check in the sum of $22.50 drawn on the First National Bank of Hubbard, Texas, by W. E. Sanders payable to J. C. Roberts. That the check was not paid by the bank but returned to him. That a few days later he received a money order from Oscar Hanson covering the amount of the check. This bill of exception is qualified by the court, who states that on direct examination by the district attorney, the witness merely testified that he had a transaction with the appellant on the 24th day of February, at which time appellant told him his name was J. C. Roberts. The matter relative to the purchase of the baby chicks and the giving of the check was all brought out by appellant on cross-examination. Then on re-direct, after appellant had gone into the matter, the State offered the check in evidence and proved by the witness that when he sent it in for collection, it was not paid by the bank but returned to him. We are of the opinion that this testimony was admissible since ■ it tended to show fraudulent intent and system. Appellant employed the same means, resorted to the same scheme, to obtain $10.50 in cash on the check from Brooks as he did in trying to pass the check in question. See for example Vol. 18 Tex. Juris. Secs., 36 and 38, pp. 70-74; Escue v. State, supra.

We do not deem it necessary to discuss bill of exception number five, because the court sustained appellant’s objection to the preferred testimony and instructed the jury not to consider the same for any purpose. Moreover the same testimony seems to have been gotten before the jury without objection on appellant’s part. See Sparkman v. State, 82 S. W. (2d), 972 and authorities cited. Bills of exceptions numbers 6, 7, 8, 9, 10 and 11 have been carefully considered by us and are deemed to be without merit.

By bill of exception number 14 appellant complains of the testimony of E. H. Brown, Cashier of the First National Bank of Hubbard, Texas, that he made an investigation in Hubbard to ascertain if there was any firm in said town who did business under the name of Sanders and Meyers, stating the places he went to and of whom he made inquiries. He testified that he was unable to find any such firm. The record shows that appellant claimed that after the transaction in question, he wrote to W. E. Sanders at Hubbard and informed him of the trouble he was in by reason of his attempt to pass the check in question. That he received a reply from W. E. Sanders on a letter head of “Sanders & Meyers Auto Wrecking Yard,” a firm composed of W. E. Sanders and A. L. Meyers, and which remitted to him the amount for which the check in question was drawn. The testimony objected to was admissible as it tended to show that the letter was not genuine and bona fide, but simulated.

Bills of exceptions numbers 16 through 22 inclusive complain of certain remarks by the district attorney in his argument to the jury. We have given these bills of exceptions our most careful consideration and reached the conclusion that the arguments were reasonable and proper deductions from the testimony. We have also examined the court’s charge in the light of the objections addressed thereto and reached the conclusion that they are not subject to the objections. All other matters complained of have had our most careful consideration and are overruled without written comment.

No error of a reversible nature appearing in the record, the judgment of the trial court 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.