Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
The forgery declared is alleged to consist in fraudulently and without lawful authority altering a certain promissory note, in the sum of $300, signed by J.W. Winters and F.B. Winters, by adding thereto the names of J.T. Wade and T.R. Johnson. Appellant contends that the State failed to prove that said note was originally signed, as alleged, by J.W. Winters and F.B. Winters. We have examined the record carefully in this regard, and in our opinion the testimony is sufficient to show that it was so signed, and there is no variance between the allegations and the proof in this respect. True, Durham, the payee of the note, alluded to the original signers thereof as the "Winters boys." The note itself was introduced, and showed to be signed, as alleged, by J.W. Winters and F.B. Winters. It seems to us that, as alleged, this was sufficient proof, especially when same was referred to by the witness Durham as having been signed by the Winters boys. But, in addition to this, J.W. Winters, one of the signers of said note, testified that defendant came to see him and his brother, and wanted them to go on his note, in order to borrow some money from J.J. Durham; that he and his brother signed said note with the understanding that he was to get two other parties to sign the same. He further stated that he and his brother had executed to Durham a new note in place of the note now before the court, and that he and his brother would not have signed the old note, had it not been that appellant had agreed to get two other persons to sign the note. As stated above, we think the production of the original note, signed is alleged by J.W. Winters and F.B. Winters, the indictment not being predicated on the forgery of their names, was sufficient proof of such note so signed; but the additional testimony of J.W. Winters certainly places this question beyond any cavil. *Page 98
Appellant claims there is a variance between, the instrument set out in the indictment and that offered in evidence. No question appears to have been made as to this matter in the court below. The only possible difference in the two instruments, as contained in the record, is that the one set out in the indictment contains "No. _____. Due _____," on the right hand Margin. This is no part of the instrument, and does not constitute a variance.
He also contends that the article "the" occurs in the copy set out in the record before the word "same," in the last line of the note, whereas the article "the" does not occur in the same place in the note as set out in the indictment. We regard this as hypercritical.
Appellant, in brief, complains of the following charge of the court: "If you believe from the evidence that the defendant did not sign the names of J.T. Wade and T.R. Johnson to the instrument described in the indictment, then you will acquit the defendant. You are further instructed that, if you believe from the evidence that J.T. Wade and T.R. Johnson signed their names to said instrument, then you will acquit the defendant." He complains of this charge for the first time in this court, and urges that, notwithstanding no exception was taken to this charge in the lower court, it is fundamental error, and the case should be reversed. If we concede that appellant could bring this matter forward now for the first time, yet we fail to see any error committed by the court in the above-mentioned charge. The contention is that the court deprived appellant of the reasonable doubt, and threw upon him the burden of proving his innocence. The court had already charged the jury that they must find the facts constituting the offense, — among other things, that appellant, without lawful authority, signed the names of J.T. Wade and T.R. Johnson to said note, — and that they must find this beyond a reasonable doubt before they could convict the defendant. And in addition to this the jury were instructed that they could not find the defendant guilty, unless the evidence established his guilt beyond a reasonable doubt, and if they had a reasonable doubt of the guilt of defendant, they would acquit him. We fail to see how the charge complained of deprived appellant of the reasonable doubt as to said defensive matters, when they were expressly told in the charge that they must find beyond a reasonable doubt that said names were signed by appellant to said note without lawful authority. There is nothing in this contention.
Appellant insists that the court having committed an error, in stating the punishment for uttering said forged instrument erroneously, the case on that account should be reversed. The court submitted both counts in the indictment, and gave the imprisonment for both forgery and uttering a forged instrument at imprisonment in the penitentiary not less than two nor more than seven years. This is a correct statement of the punishment for forgery but the statute fixes, the punishment for uttering a forged instrument at confinement in the penitentiary not less than two for more than five years. It will be seen from an *Page 99 inspection of the record that the jury returned a general verdict of guilty, and that the court, in rendering the judgment and entering the sentence against appellant, applied the verdict to the count for forgery. A number of cases in this State have been reversed because the court, in stating the punishment prescribed, charged a punishment different from that contained in the statute punishing the offense. This has been so held even where the maximum punishment stated by the court was less than that prescribed by the statute. We would observe here, however, that we can see no reason or common sense for the reversal of it case where the court has given the correct minimum punishment prescribed by statute, and has given a less maximum punishment than fixed by law. Certainly in such a case the charge will inure to the benefit of defendant. In this ease, however, the court gave a greater maximum punishment than that prescribed for uttering a forged instrument. The jury, however, did not find a greater punishment, but found the minimum prescribed for that offense, and also for the offense of forgery. The objection to this charge was raised for the first time in the motion for new trial. Our recent statute on the subject provides that the charge must be excepted to, and must appear to have operated to the prejudice of appellant. We fail to see how the charge in question affected appellant injuriously. This same question, however, involves another question raised by appellant; that is, the power of the court to apply the finding of the jury to the count for forgery. If the court had authority to make this application, and the charge of forgery was correct as to punishment, then an incorrect charge on the count for uttering would be immaterial. Appellant raised this objection by a motion in arrest of judgment, and he thus questions the action of the court in applying a general verdict of guilty under both counts in the indictment to the count of forgery. It will be conceded that forgery and uttering a forged instrument are two distinct offenses, and the punishment different, as to the maximum prescribed. If we follow the rule heretofore laid down by this court on the subject, we must uphold the action of the court. See Southern v. State, 34 Tex.Crim. Rep.; Carr v. State, 36 Tex.Crim. Rep.; Rosson v. State, 37 Tex. Crim. 87. We understand, however, that appellant attacks the correctness of these decisions. Mr. Bishop says (1 Bishop Criminal Procedure, section 1015, subdivision 4): "Where distinct offenses are charged in separate counts, a general verdict of guilty is not ill in form, and it operates as a conviction of all. Yet it has been deemed, and in reason it is just, that a defendant may, on request, have separate finding on the several counts, or in some way have the jury pass on each by itself. There may be an acquittal on some counts, and a conviction or disagreement on others, and the count whereon was the disagreement will be subsequently submitted to another jury." [d., section 1015, subdivision 5: "No form of verdict will be good which creates a repugnance or absurdity in the conviction. For example, since one can not both steal a thing and commit the offense of receiving it from the thief, if an indictment charges *Page 100 him, as it may, with the former in one count and the latter in another, a general verdict of guilty, being inconsistent, will not sustain the judgment." Id., section 1016, subdivision 2: "Because a defendant waives his right by not objecting when an imperfect verdict is rendered, if it is set aside he shall not be discharged, but tried anew. The court can not, instead thereof, change the verdict or judgment to what it should be." Numerous authorities are cited in note. Archb. Criminal Pleading lays down the same general doctrine. 1 Archb. Crim. Pl., p. 295, and notes. We have examined a number of authorities referred to, treating on this question, where distinct offenses are charged in the same indictment in different counts, and a jury returned general verdict of guilty, without designating upon which count the find against the defendant, as to the power of the court to apply the verdict to any particular count. The following authorities seem to authorize the court to do this: State v, Tuller,34 Conn. 280; Seott v. State, 31 Miss. 473; Lovell v. State,45 Ind. 550; United States v. Furlong, 5 Wheat., 184. On the other hand we cite the following cases as holding a contrary view: Boyd v. State, 7 Cold., 69; State v. McCauless, 31, N.C., 375; State v. Johnson, 75 N.C. 123; State v. Scott, 15 S.C. 134. Other cases referred to are not accessible to us. As stated before, if we adhere to the rule laid down by our court in cases in which this question has been presented, we must hold that the court; has the power and authority to make the application of a general verdict to any count of the indictment, although such counts may embrace distinct offenses. Of course, it would be the better practice, — where an indictment contains counts charging distinct offenses, with different punishiments, — after the evidence is all in, to require an election. If there is no request for this, and it is not done, then the court, in submitting the various counts, should require the jury to make a finding upon each particular count, or certainly to state upon which count they find appellant guilty. But that is not the question here. The question now presented is, where this practice is not pursued, and the jury have returned a general verdict under an indictment with different counts covering distinct offenses, and the court has has applied the verdict, can we uphold the action of the court in this regard, when it is presented for the first time by a motion in arrest of judgment or for new trial? These authorities which hold that the court has the authority base their decisions upon the proposition that the verdict is general; that is, the jury have found defendant guilty upon all the counts, and it is perfectly competent for the court to apply it to any one. There is much force in this view. But it is contended that this involves the ascertaining by the court and the selection of the particular offense charged in some one of the counts in the indictment; and so the court is made to usurp the functions of the jury, and determine the particular offense of which they may have found him guilty. But, when we remember that the jury have found him guilty upon every count of the indictment, it would certainly seem competent for the court to apply their finding to some particular count of the indictment; *Page 101 and, when the punishment assessed by them is a punishment authorized to be applied to the offense ascertained by the court, we can see no difficulty in this doctrine of selection of application; nor is it in any respect the usurpation of the functions of the jury. Of course, he must select a count sustained by the evidence; otherwise his action would not be supported, but will be subject to revision in motion for new trial, or, if this is refused, by the revisory court. We are not here treating of repugnant offenses. It may be the correct doctrine, if counts in an indictment contain distinct offenses which are repugnant one to the other, that in such case the court can not say on which one the jury may have found defendant guilty. But there is no repugnancy in this case between the act of forging and uttering the forged instrument. Indeed, they are entirely consistent with each other, and as a general rule the forger is also the utterer. No error appearing in the record, the judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled at the Dallas term, 1899, without a written opinion. — Reporter.]