Spicer v. State , 52 Tex. Crim. 177 ( 1907 )

Appellant was convicted of forgery, his punishment being assessed at three years confinement in the penitentiary.

The indictment contained two counts, the first charging forgery of the following instrument:

"Abilene, Texas, Jan. 10th, 1907. No. ____

"The Citizens National Bank of Abilene. "Pay to Hut Spicer, or order, $15 (fifteen dollars) .... Dollars.

"W.P. CAATS, Abilene, Texas."

The second count was for passing the same instrument with the further statement endorsed on the back:

"Abilene, Texas, Jan. 10th, 1907. No. ____

"The Citizens National Bank of Abilene, Texas. "Pay to Hut Spicer, or order, $15 (fifteen dollars) .... Dollars.

"W.P. CAATS, Abilene (endorsed on back), HUT SPICER, Abilene."

The conviction was under the first count for forgery. Motion in arrest of judgment was urged because the instrument was not endorsed and therefore not such a valid instrument as constituted the basis of forgery. This position is not correct. It is not necessary to constitute forgery that the instrument be a full and complete one; if it was complete so far as the maker is concerned, it is a sufficient basis for a charge on forgery.

It was contended below and urged here that there was a variance, first, as between the name W.P. Caats, signed to the instrument, and the name W.P. Coats intended to be signed. The other question of variance arises under the contention that the name Spicer appears to be Spice. There was testimony introduced in regard to both issues pro and con. The question was submitted as an issue to the jury for their decision as to the variance, and this was correct, in so far as the supposed variance between Spicer and Spice is concerned under the facts. See Nichols v. State, 39 Tex.Crim. Rep.; 44 S.W. Rep., 1091. As to the supposed variance in the names of Caats and Coats, there is nothing in the contention. The precise question here raised was decided adversely to appellant in Davis v. State, 34 Tex. Crim. 117; 29 S.W. Rep., 478. The two cases cited, supra, Nichols and Davis, are decisive of these questions adversely to appellant.

This portion of the charge is criticised: "If the attorneys for the defendant or the attorney for the State during the argument of this case made any remarks or statements as to the defendant or any witness, you will not consider any such remarks, if any, as evidence of any fact in the case. Nor shall you consider same for any purpose whatsoever unless same was justified by the evidence or reasonable deductions therefrom." The right of the defendant to be represented by counsel and be heard by counsel and by himself, is a right guaranteed by the Constitution, set forth in the Bill of Rights, and the court could not bar the accused of this right but should afford ample opportunity for his assertion of the right, and should be careful not to infringe this right in remarks or in a charge to the jury. See Roe v. State, 25 Texas Crim. App., 33; 8 S.W. Rep., 463, for a discussion of this subject. But an inspection of the charge by the court, in our judgment, does not show an infringment of the right of appellant. It only informs the jury that the remarks of counsel should not be considered by them as evidence of any fact in the case, nor for any purpose unless such argument or remark was justified by the evidence or reasonable deductions therefrom. We are of opinion that this was not calculated to impress the jury with the fact that the legitimate argument of appellant's attorneys could not be considered by them. It is a correct statement, we think, that the argument shall not be considered evidence of a fact. But, as stated by the court, it is the deductions from the facts; that is, they were authorized to consider these arguments or remarks where justified by the evidence or deductions from the evidence.

We are of opinion that the evidence is sufficient. Appellant carried the forged check to the witness Clark, and stated that he secured it from Coats, a ranchman, who lived north of Abilene. Coats testified he did not sign the note or authorize his name signed to it. If it was intended to sign the name of Coats, of course, appellant knew that he had no such authority, and he knew that Coats had not signed it. If it was the name of a fictitious person, appellant knew that it was a forgery, because he stated that it was the signature of Coats. We are of opinion that this is sufficient evidence to show that this was a forgery. His contention was that he was drunk at the time, and so drunk that if he made or passed the instrument he had no recollection of it. This question was submitted to the jury by proper instruction. It may be further stated that shortly after passing the instrument, and during the same day, or that night, appellant left Abilene, going east on the T. P. Railway, and was arrested in Collin County.

As the case is presented, we are of opinion there are no such errors in the record as would require a reversal of the judgment, and it is, therefore, affirmed.

Affirmed.

ON REHEARING. December 4, 1907.