De Alberts v. State , 34 Tex. Crim. 508 ( 1895 )

The appellant in this case was tried under an indictment charging him with forgery, was found guilty and his punishment assessed at two years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal.

The appellant assigns as error the overruling of his motion for a continuance. This is the third application, and shows a want of diligence. The appellant in this case was indicted on the 7th of June, 1894, and was immediately arrested under a capias in said cause. He applied for a continuance at the October Term for the want of certain witnesses, whose names appear in said application; and he made a second application at the December Term on account of the absence of two certain witnesses he had not included in the former application. On the 19th of February he applied for a continuance for the want of the testimony of Mrs. Martha Frink, who resides in Jamestown, Chautauqua County, in the State of New York. The name of said witness had not been included in either of the said former applications. It appears that interrogatories were propounded to her on the 15th of January, 1895; and that on the 8th of February he sued out a commission, and forwarded the same to an officer at the residence of said witness, in the State of New York. It was proposed to prove by said witness that insanity existed in the family of appellant. No excuse is shown for the failure to have sued out the process earlier, and the only reason assigned why said deposition has not been returned is, that said witness is ill and confined to her bed. How ill is not stated, and how long she had been confined to her bed is not averred; and, for aught that appears, the officer might have gone to the house of said witness, and procured her deposition, notwithstanding said witness was not in good health. In our opinion, the court did not err in overruling said motion.

Nor did the court err in admitting the instrument alleged to have been forged, because of any variance between same and that set out in the indictment. The letters "F N B" appear on the margin of the instrument, in the shape of a monogram.

The defendant also assigns as error the charge of the court on the subject of temporary insanity produced by the recent use of intoxicating liquor, and insanity such as delirium tremens or mania a potu, the remote cause of which is drunkenness and insanity generally. In our opinion, the charge in question follows the decision of this court in Evers v. The State, 31 Texas Criminal Reports, 318, and is sufficient.

Appellant insists that the court committed an error in refusing to permit the witness Maggie De Alberts to testify, that at the time of the commission of the alleged offense defendant had ample money and means in his possession and on his person; that he was doing a prosperous business, and had considerable money due him for work; and that said money so due was easily collectible, and defendant's credit was good. The defendant, in his bill of exceptions, fails to show the grounds upon which this testimony was offered, which he should have done. Conceding, however, that it was not necessary to point out in his bill any reason for its admissibility, was the rejected testimony of that material character, if it was true, that would have probably changed the result in this case? Said testimony, as insisted by appellant in his assignment of errors, was offered for two purposes: the first, to show that defendant, if he was sane, was in good circumstances, and there was no motive impelling him to the forgery; the second, on his plea of insanity, that it would be testimony tending to show that he acted without a motive, and was so insane. In reply to this, it is sufficient, as to the first proposition, to say, that the testimony in this case coming from the State places the question of forgery of the instrument in question by the defendant beyond the peradventure of a doubt. It is shown by the witness Bader, for the State, upon whom the alleged forged instrument was passed, that the defendant was indebted to him in a small account; that on the 30th of April, 1894, he came into the store of the prosecutor Bader and handed him the check shown in evidence, which was for $28.60, and desired to pay his account, and to receive the balance of the check in cash. On inquiry as to the check, he told Bader that it was given him by Dr. W.A. Tryon, who was in the drug business in Houston; that he acted in a businesslike manner in connection with the transaction, and the only thing noticeable was that he appeared somewhat excited. W.A. Tyron was introduced by the State, and said that he was in the drug business in Houston, and that the check in question was not signed by him, nor did he authorize any one else to sign it, and that he did not know De Alberts. The testimony was not gainsaid or denied; and although the defendant may have had abundance of money in his possession and on his person (though the latter is to be doubted, since the officer who arrested him directly after the transaction states that he only found on him $18.50, presumably the same money that had been paid to him on the draft, as that amount tallies with the amount paid him by Bader less 10 cents), yet such proof would not antagonize the fact of forgery. As to the insanity of the defendant, this testimony was of rather a thin and shadowy character, and at most shows that defendant was only subject to spasmodic fits of mental aberration, and that at the time of passing this forged instrument in question none of the witnesses state that he was laboring under such spell, but he appears to have been possessed of all of his faculties; so that, in our opinion, the absent testimony would not reasonably have changed the result. Pruitt v. The State, 30 Texas Crim. App., 158; Land v. The State, ante, p. 330.

There appearing no errors in the record, the judgment and sentence of the lower court are affirmed.

Affirmed.

Judges all present and concurring.