The offense is passing a forged instrument; the punishment, confinement in the penitentiary for two years.
State's witness R. F. Williams testified that appellant came to his place of business and gave him a check for $16.50, purporting to be executed by M. A. Hunt Son, and payable to the order of Bud Huse. The witness said the appellant told him his name was Bud Huse and that he desired to take up the check that had theretofore been given the witness by one Roy King and receive the difference in money. After taking up Roy King's check, appellant received $5 or $6 in money from Mr. Williams. The state's proof tended to show that M. A. Hunt Son were fictitious persons, a search of the county having disclosed no such firm.
Appellant testified that he won the check from his uncle in a poker game; that his uncle was going under the name of Bud Huse; that his uncle told him to take the check to the state's witness and cash it and take up the check that he had theretofore given the witness; that he did not know the check was forged at the time he passed it.
Bill of exception No. 1 relates to appellant's objection to the testimony *Page 133 of state's witness A. P. Mercer. It is recited in the bill that the witness testified, in substance, that he had gone to the commissioners' court and inquired of them as to whether they knew of a firm by the name of M. A. Hunt Son; that he had gone to a point in the county where highway work was going on and made inquiry as to the whereabouts of M. A. Hunt Son; that he had also made inquiry of the board of trade; and that he could find no firm of that name. It is further recited that appellant objected on the ground that what the parties said would be hearsay. There is nothing in the bill to show that the witness was told by the parties that there was no such firm. The bill only shows that the witness made the inquiry and that he was not able to find a firm by the name of M. A. Hunt Son. The theory of the state was that M. A. Hunt Son were fictitious persons. The signing of a fictitious name with intent to defraud may constitute forgery. Branch's Annotated Penal Code, sec. 1410; Feeny v. State, 62 Tex. Crim. 585,138 S.W. 136. The state may resort to legitimate circumstances to prove that the person is fictitious. Lasister v. State, 49 Tex.Crim. Rep., 94 S.W. 233. The fact that a diligent search was made in the county for M. A. Hunt Son and that no such firm was found was a proper circumstance to be proven. In Cox v. State, 92 Tex.Crim. Rep.,244 S.W. 605, this court held that no error appeared in allowing citizens of the county to testify that they were familiar with the population and knew no such person as C. B. Hendrix, the person purporting to execute a check. Further, it was held that it was proper to prove by members of the grand jury that they were unable to find such person during their investigation.
Bill of exception No. 2 recites that the deputy tax assessor of Tom Green county testified, in substance, that he had worked in the office for approximately 19 years; that he had searched the records for the purpose of determining if any property had been rendered for taxes by M. A. Hunt Son for the years 1930 and 1931; that no property had been rendered for taxation in the name of M. A. Hunt Son for said years. Appelant objected to this testimony on the ground that it was introduced to show that M. A. Hunt Son were fictitious persons, and that the fact that the tax assessor's record did not show the persons listed would be irrelevant, immaterial and prejudicial, and would be negative testimony not admissible on any issue in the case. We are aware of the holding in Lasister v. State, supra, in which this court said that it did not believe it permissible to show by the tax collector that the name of the alleged fictitious person did not appear on his rolls. In the course of the opinion, it was said that the court did not understand that such circumstances proved or tended to prove that the party was a fictitious person. The facts recited do not reveal the conditions obtaining in any degree of detail. It may be that under some circumstances such testimony would not be *Page 134 relevant on the issue as to whether a fictitious person was involved. However, it is difficult to foresee or imagine such conditions. In the present case we have no difficulty in concluding that the evidence in question was admissible. We think it was proper to show that an alleged firm supposedly transacting business and holding property in the county had not rendered property for taxation and that the name of such firm or persons composing it did not appear on the tax rolls. This was a circumstance, under the facts, tending to show that no such firm existed. Underhill's Criminal Evidence, 3rd Ed., sec. 633.
The court instructed the jury as follows: "You are further charged that if you find and believe from the evidence beyond a reasonable doubt that the check described in the indictment was a forged check; but, if you further find and believe from the evidence; or, if you have a reasonable doubt thereof, that the defendant, Charles Mathis, at the time he passed said check to R. F. Williams, did not know the same to be forged, or did not pass same with the intent to defraud, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty."
Appellant objected to the charge on the ground that it nowhere adequately presented to the jury his affirmative theory of defense. We deem the objection insufficient to point out the particulars in which the charge was inadequate. Appellant testified that he did not know the instrument was forged. The court pertinently gave an affirmative instruction covering the issues raised by this testimony.
The court further instructed the jury as follows: "You are further instructed that if you find and believe from the evidence beyond a reasonable doubt, that the purported maker of the check in question, was a fictitious person and the defendant knew it, and the name was signed with intent to defraud, and the defendant so knowingly, did knowingly, pass it to the person alleged as true and genuine he would be guilty of knowingly passing a forged instrument."
To the foregoing charge appellant objected on the ground that it placed the burden of proof on him to show that he did not know that the name signed to the check was that of a fictitious person, and that said charge was upon the weight of the evidence. We do not understand that the charge is subject to the objection leveled at it. The court required the jury to believe the matters embraced in the charge beyond a reasonable doubt before they could convict.
Failing to find reversible error, the judgment is affirmed.
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. *Page 135
ON MOTION FOR REHEARING.