At the late Dallas Term of this court this case was affirmed, and now comes before us on motion for rehearing.
The only insistence of appellant we deem necessary to review is the contention that the evidence is insufficient. The facts in the case are very fully stated in the original opinion. Appellant insists that the evidence is insufficient because the same is circumstantial and does not comply with the provisions of article 794 of the Code of Criminal Procedure, which article reads as follows: "It is competent in every case to give evidence of handwriting by comparison made by experts or by the jury; but proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath." There are many facts in this case in addition to those cited in the original opinion that might be collated going to show criminal connection of appellant with the execution of the instrument for which he was prosecuted, but we do not deem it necessary to do so, but suffice it to say that there is other evidence in the record that clearly establishes the guilt of appellant in addition to the proof of handwriting. The statute last cited simply insists that no conviction shall be had against a defendant by comparison of *Page 129 handwriting alone, but where comparison of handwriting is supplemented by other evidence showing guilty knowledge, motive and knowledge of the crime in question, this certainly ought to be and should be sufficient evidence. To hold otherwise would preclude any character of successful prosecution for forgery. It is not one case in a thousand where a party is seen by an eyewitness to forge an instrument, but it is merely established circumstantially that he did so. Then if the circumstances can be strengthened by expert testimony on handwriting, we then have a stereotyped case of forgery. Appellant cites us to the case of Spicer v. State, 52 Tex.Crim. Rep.[52 Tex. Crim. 177], and his contention was there very clearly sustained, but that case is not the law, and is hereby overruled. This court fell into error in construing the statute under consideration in said last cited case, and practically held that before a conviction could be sustained there would have to be positive testimony in addition to handwriting before there could be a successful prosecution for forgery. This was not correct. But if there is no evidence at all for the State save and except proof by comparison of handwriting, then we would be forced to reverse the case by the sheer force and terms of the statute above cited, but in this case we have a very different condition. The proximity of appellant to the place and time when the forgery was committed, his motive for the forgery, the fact that he secured the money, the fact that he was cognizant of all the facts that would put him in a position to perpetrate the forgery, and all the other facts collated in the original opinion, clearly indicate and conclusively establish his guilty connection with the commission of this crime. In addition to the above, we have the proof by the expert witness of his handwriting by comparison. It follows, therefore, that the evidence is entirely sufficient. We might extend this argument further if we deemed it necessary, but we do not. We have carefully reviewed all of appellant's contentions, and believe the original opinion was correct, and the motion for rehearing is overruled.
Overruled.