The appellant was charged with forgery and passing a forged instrument. The count charging forgery was not submitted. The instrument involved was a check drawn by I.B. Padgett, county treasurer, on the Graham National Bank for the sum of $84.50, payable to J.T. Lowe. It bore the endorsement of J.T. Lowe and E.W. Fry, and was passed by E.W. Fry, and the State's theory that J.T. Lowe's name was forged, and that the appellant passed the instrument knowing of the forgery, is sustained by the verdict of the jury. It appears that the county, by authority of the Commissioners Court, was engaged in certain improvements requiring the employment of labor and teams, and that there was a custom sanctioned by the Commissioners Court under which persons to whom the county was indebted collected their money by presenting an account therefor to the appellant, who was county judge; that upon his approval the county clerk issued a warrant for the amount on the delivery of which to the county treasurer a check was issued payable to the holder of the claim, and that the check in question was the result of a transaction following this custom. The fact that the check came into the possession of and was passed by appellant was established. J.T. Lowe testified, in substance, that he was not entitled to either the warrant or the check, and that he did not receive, endorse or authorize the endorsement of the check. There was testimony pro and con touching the contention that the name of J.T. Lowe was written on the check by the appellant. The cross-examination was conducted with a view of suggesting that although the J.T. Lowe who testified had not endorsed the check, that it was issued to and endorsed by another of the same name, and innocently passed by appellant. To discharge the burden that was upon it to show that the check was forged, and that appellant with knowledge of the forgery passed it, and to meet the suggestion mentioned the State introduced evidence of other similar transactions, which theory was that appellant conceived the purpose to fraudulently withdraw from the treasury of the county some of the money and devised to that end a system of making fictitious accounts, entering his approval thereon, ordering the county clerk to issue warrants therefor, and obtaining against the same the treasurer's check upon the funds of the county, made payable to the fictitious creditor of the county, which check he would pass after writing the name of the payee and his own name on the back thereof. In support of this theory the State introduced a large number of accounts, warrants and checks with which it showed or undertook to show appellant's connection. These transactions covered a period of about three years, part of them prior and part of them subsequent to that upon which the prosecution is founded. Their admissibility was challenged by the appellant. The general rule is, of course, that an accused is to be tried *Page 507 upon the merits of the charge against him, and the proof of other crimes is not received. Gilbreath v. State, 41 Tex. 567, and other cases cited in Branch's Ann. P.C., p. 99.
The question is, does the proof made here come within one of the exceptions to this rule? That there are exceptions to the rule is as well established as the rule itself. Branch's Ann. P.C., p. 98, sec. 166, and cases cited. That cases of passing forged instruments, where there is an issue of guilty knowledge or intent, come within one of the exceptions has often been affirmed by this court. Ham v. State, 4 Texas Crim. App., 645; Francis v. State, 7 Texas Crim. App., 501; Heard v. State, 9 Texas Crim. App., 1, and other cases cited in Branch's Ann. P.C., p. 864, sec. 1412. Mr. Wharton in his work on Criminal Evidence, vol. 1, p. 135, sec. 35, states what we understand to be the correct rule, as follows:
"Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter, or guilty knowledge, even though the reception of such evidence might establish a different and independent offense.
"In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge.
"It is equally important in forgery and counterfeiting to establish scienter. The accused is charged with holding or circulating forged paper. He may hold one without being justly chargeable with knowledge of its character; when three or four are traced to him, suspicion thickens; if fifteen or twenty are shown to have been in his possession at different times, then the improbability of innocence on his part decreases in proportion to the improbability that such papers could have been in his possession without his knowledge of the true character of the paper. If the accused is charged with knowingly making or holding or passing the forged paper, the possession being shown, but knowledge of its character being disputed, the fact to be proved is that the knowledge was guilty knowledge; and it is admissible to show that shortly before or after the fact charged he had made or had held or had uttered similar forged instruments to an extent that renders it improbable that he should have been ignorant of the forgery."
This accords with the rule stated by Mr. Wigmore in his work on Evidence, volume 1, section 309. See also Ruling Case Law, vol. 8, p. 204. There being an issue of guilty knowledge in the passing of the instrument in question, we think that evidence that appellant passed other forged checks similar in character was admissible. To make them admissible, however, they must be forgeries, and the accused's connection with them must be proved. Ham v. State, 4 Texas Crim. App., 645.
To identify the instrument with which appellant was connected, the State relied mainly upon the testimony of I.B. Padgett, who was county treasurer at the time of the transactions.
It is plain from the statement of facts that in the operations of the *Page 508 Commissioners Court, under the custom above referred to, that a great many valid transactions occurred. In other words, through the method mentioned a great many accounts were presented and proved by appellant, warrants drawn and checks collected satisfying valid claims against the county and going into the hands of the lawful holders. There is evidence of the banker who paid these checks that his only means of knowing that the particular checks submitted to him as a witness were paid to appellant was the fact that his name was endorsed thereon, and he admitted that he sometimes required endorsement for the purpose of identification, and that the fact that appellant's name was on the check was not conclusive to him that the check may not have been paid to the payee and the endorsement made for the purpose of identification. Padgett identified, as we gather from the record, 193 checks. The relevancy of these checks against appellant depended upon proof that the endorsement thereon was forged. To meet the legal requirement that proof of the forgery be made by it, the State relied upon various circumstances. As to some of the checks, we gather from the evidence that there was testimony that the supposed spurious endorsement was written in appellant's handwriting. As to others, the State produced witnesses who were residents of the county and whose names were identical with the payee in the checks, which witnesses declared that they had no connection with the check or its endorsement. As to some of the checks introduced in evidence and identified by Padgett, there was evidence that there lived in the county persons whose names corresponded with that of the payee. As to the major portion of them, however, the evidence showed that the payee was unknown and from this circumstance the State presented the theory that the warrants were obtained by appellant in the name of fictitious persons and that he wrote or caused to be written upon the checks the fictitious name, writing his own thereunder and passing the check.
The witness Padgett, in his testimony, referred to several batches of checks which he said he examined and which bore the genuine endorsement of appellant. He gave testimony with reference to each of these checks, aggregating, as we estimate them, 193. He testified that most of the payees of the checks were unknown to him, though some of them were known, and from his testimony it is difficult for us to determine just how many of the payees he claimed to have known. The banker referred to, testified to a wide acquaintance in the county and in connection with his testimony there was introduced a detailed list of those who were unknown. In this list there were 144 names.
There was evidence that the persons who worked for the Commissioners Court were both local and transient people. There was also evidence that other members of the Commissioners Court approved some of the accounts in the name of appellant. Ordinarily we understand the rule to be that where the payee of a questioned instrument is represented to be or reside in the particular locality, and sufficient inquiry is made developing the fact that such person is not known in the locality named *Page 509 that a finding of the jury that this payee is a fictitious person would be sustained. Greenleaf on Evidence, sec. 109; Cyc., vol. 19, pp. 1414 and 1421. In this case a number of persons to whom the county might have been indebted were transient and some of the transactions introduced were quite remote, but assuming that the proof met the legal measure that would establish the fact that the persons who were not known were fictitious and that the appellant forged the endorsement on these, and that he also forged the endorsement on the six or seven with reference to which testimony was given as above stated, there remains some forty of the checks identified by Padgett, with reference to which there appears to be no sufficient proof of forgery. They seem to be drawn by Padgett in favor of payees who were not unknown and he gave no testimony to negative their genuineness nor to refute the validity of the endorsement. It may be that this is not a correct analysis of the evidence and the counsel conducting the trial are able to point out evidence fulfilling the legal requirement that all of the collateral transactions used against appellant were forgeries. They have not in their brief nor in their motion for rehearing pointed it out, and we, after repeated readings of the statement of facts, have failed to discover it.
Giving full assent to the proposition of State's counsel that when conditions are such that collateral crimes are admissible against an accused, the State is not limited as to the number it may introduce, it can not be denied that its right to introduce each of them depends upon its ability to introduce legal evidence competent to establish in a forgery case that the collateral transaction was a forgery.
No inference of a corrupt intent in passing the forged instrument declared on in the indictment is to be drawn from the passing of a similar instrument which is not shown to be a forgery. We know of no rule which would inhibit use of circumstantial evidence to establish the fact that an instrument provable as a collateral transaction was a forgery, but as said by the Supreme Court of Vermont in State v. Williams, 27 Vt. 725, "To be entitled to any force, as it is only circumstantial and collateral to the main issue, its truth should be established beyond all question of cavil." And as said by Mr. Greenleaf: "When such other instruments said to be forged are offered in proof of guilty knowledge there must be strict proof that they are forgeries." Greenleaf on Evidence, vol. 3, sec. 111. The principle that the proof upon which collateral crimes will become admissible must amount to proof, and that evidence of circumstances upon which a suspicion may be founded is not sufficient has often been approved. State v. Saunders, 27 N.E. Rep., 455; People v. Altmore, 147 N.Y. 473, 42 N.E. Rep., 180. This principle is recognized in Taylor's case, 47 Tex. Crim. 108, wherein the court says: "We would not be understood as holding that contemporaneous suspicion against appellant would be admissible but contemporaneous acts tending to show and make out a prima facie case of *Page 510 forgery or passing a forged instrument." The principle has been definitely affirmed in Ham's case, 4 Texas Crim. App., 645.
Our conclusion is that in those instances in which evidence, circumstantial or direct, show prima facie that the collateral instrument was a forgery and was passed by appellant, that it should be received, and that the record as presented and as we read and understand it shows that a number of instruments of this class were introduced in evidence and the jury authorized to consider them against appellant where there was an absence of sufficient evidence to prove that they were in fact forgeries, and that in consequence of the admission of these a reversal of the case should be ordered.
There was evidence that after appellant was indicted for forgery he sought, without success through his attorney, to have access to the various documents which bore upon these transactions that were in one of the vaults in the courthouse, and that he subsequently undertook to go into the courthouse at night-time and secure access to these documents. In his efforts to do so shots were exchanged between appellant and some of the parties with him, who were disguised, and persons guarding the courthouse, these shots resulting in the death of one of appellant's party and one of the guards. The efforts to accomplish this purpose were admissible. Parker v. State,43 Tex. Crim. 526. The incidents of the transaction which were proved were res gestae of the transaction, and were admissible as giving color to the acts and enabling the jury to weigh them in solving the controversy between the State and the defendant as to whether his purpose was simply to inspect the documents, or to obtain and suppress the evidence of the offense. Wharton, Crim. Ev., sec. 748.
I concur in the order overruling the motion for rehearing.
Overruled.