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All the testimony as to the killings which

Was admitted Was clearly admissible.
This case should be affirmed. I dissent.

On Motion for Rehearing. PER CURIAM. Rehearing denied.

MORROW, J. (concurring). 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 indorsement 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 in Strument 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, indorse, or authorize the indorsement 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 crossexamination WaS COnducted With a WieW Of Suggesting that, although the J. T. Lowe, who testified, had not indorsed the check, it was iSSued to and indorsed 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 upon the merits of the charge against him, and the proof of Other crimes is not received. Gilbraith 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, § 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 Tex. App. 645; Francis V. State, 7 Tex. App. 501; Heard V. State, 9 Tex. App. 20, and other cases cited in Branch's Ann. P. C. p. 864, § 1412. Mr. Wharton in his Work on Criminal Evidence, Vol. 1, p. 135, $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 3 or 4 are traced to him, suspicion thickens; if 15 or 20 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, vol. 1, § 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 Tex. 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 commissioners' court, under the custom above referred to, 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 indorsed thereon, and he admitted that he sometimes required indorsement 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 indorsement 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 indorsement 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 indorsement was written in appellant's hand Writing. 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 indorsement. 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 indorsement 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 unknoWIm. In this list there Were 144 Ila. In 16S. 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, a finding of the jury that this payee is a fictitious person would be sustained. Greenleaf on Evidence, § 109; Cyc, Vol. 19, pp. 1414, 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 indorsement on these, and that he also forged the indorsement on the 6 or 7 with reference to Which testimony WaS given as above Stated, there remains Some 40 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 indorsement. 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 cannot 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 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 Wermont in State V. Williams, 27 Vt. 725: “To be entitled to any force, as it is only circumstantial and collateral to the main is

sue, its truth should be established beyond all question or cavil.” r

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, § 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, 68 Iowa, 370, 27 N. W. 455; People v. Altman, 147 N. Y. 473, 42 N. E. 180. This principle is recognized in Taylor's Case, 47 Tex. Cr. R. 109, 81 S. W. 933, 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 forgery or passing a forged instrument.” The principle has been definitely affirmed in Ham’s Case, 4 Tex. App. 645. [1] 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, 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. [2] 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 nighttime 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. Cr. R. 526, 67 S. W. 121. 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. § 748. I concur in the Order overruling the motion for rehearing.

DAVIDSON, P. J. I agree to the overruling of state's motion for rehearing, but ad

here to the original opinion as my opinion Of the Case.

PRENDERGAST, J. I concur with Judge MORROW in holding the forged checks were admissible. I think the proof was sufficient to admit all of them. But even if it could be held the proof might be lacking as to SOme Of them, their admission Was an immaterial error. I also concur With Judge MORROW in holding the facts of the killings Objected to Were admissible. Upon the Whole, the case should be affirmed, not reVersed.

(83 Tex. Cr. R. 444) JONES v. STATE. (No. 5042.)

(Court of Criminal Appeals of Texas. May 22, 1918.)

1. CRIMINAL LAW (3:51159(5)—VERDICT-ExCESSIVE PUNISHMENT. Assessing punishment being in the discretion of the jury, a verdict within the limits of the statute is rarely set aside as excessive.

2. LARCENY 6:555 – SUFFICIENCY OF EV1. DENCE. Circumstantial evidence held sufficient to sustain conviction of theft of one claiming to have been given the articles by another to sell.

3. CRIMINAL LAW 6-9448(2)—EVIDENCE—CONCLUSION. Answer in the negative to question whethel witness knew a person of a certain name is a statement of fact, and not a conclusion. 4. CRIMINAL LAw @->695(2)—TRIAL–OBJECTIONS TO EVIDENCE. Testimony being admissible for any purpose, general objections of irrelevancy and immateriality are not well taken.

5. CRIMINAL LAW (3:1092(6)–APPEAL-BILL

OF EXCEPTIONS—LATE FILING.

Bill of exception filed more than two months

after adjournment of court will not be considered; there being no order in the record allowing it to be so filed.

Appeal from District Court, Grayson County; C. T. Freeman, Judge.

Will Jones was convicted of theft, and appealS. Affirmed.

E. W. Neagle, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of the theft of 730 pounds of brass, and awarded ten years in the penitentiary.

[1] It is contended, first, that the evidence is not Sufficient, and, Second, that the Verdict is excessive. These were made grounds of the motion for new trial, and exception Was reserved to the court's action overruling these grounds of the motion. The bills of exception add nothing to the force and effect of the action of the court overruling the motion for new trial upon these grounds. We are of Opinion that the evidence is Sufficient. Under Our authorities it Seems that it was within the discretion of the jury to assess the punishment, and it is rarely the case Where a Verdict is Set aside because of excessive punishment, where the statute gives a graduated punishment from a minimum to a maximum number of years. [2] The case is one of circumstantial evidence. The property was taken from one of the shops of the Katy Railroad at Denison. Appellant testified, and it is shown, that he Carried this braSS from Denison to Dallas and Sold it. He claims to have taken it for a man named Morrison, who delivered it to him for the purpose of selling it in Dallas. Appellant employed a chauffeur With a car, and in this car or auto he carried the property from Denison and sold it in Dallas. There Was Some uncertainty about his identification as the party who made the trade with the purchaser in Dallas. There is no uncertainty as to the fact he was in the car with the chauffeur when they drove to Dallas and when the sale was made. and that he hired the car for that purpose. The seller directed the purchaser to mail the check to Denison to Tom Morrison, ordering it to be drawn in MOTriSOn's name. Later appellant and two other parties Went near the postoffice in Denison and appellant directed One of the parties to go to the pOStoffice and call for the letter to Morrison. The officers immediately arrested appellant and the party who called for the letter. Appellant testified to the fact that Morrison induced him to carry this property to Dallas and Sell it. Morrison Was not identified and COnnected With it Other Wise. There is SOme evidence to the effect that such a negro as Morrison Was not known to the Officers and people around Denison. It Was claimed Morrison lived in Oklahoma, and brought this brass to Denison and induced appellant to carry it to Dallas and sell it for him. Appellant paid the chauffeur $18, or agreed to pay him $18, to carry him to Dallas to make the Sale. [3,4] The witness Craig, after testifying that he had been deputy sheriff of GraySon County for eight years, and had been special officer for the Missouri, Kansas & Texas Railway Company, and had been chief of police during the portion of the time he lived in Denison, was asked by the county attorney if in his experience as an officer he 2ame in contact With the citizenship of Denison and the negroes Of Denison. He answered both questions in the affirmative. He Was then asked if he knew Or had known a negro named Tom Morrison living in Denison. He answered in the negative. Objection was urged to this on the ground that it WaS irrelevant and immaterial and just an Opinion and conclusion of the witness. It was a fact whether he knew Tom Morrison Or not, and not his COnclusion. The objections on the ground of irrelevancy and immateriality may be treated as general demurrers. If this testimony Was admissible for any purpose, these objections Were not

6-oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

well taken. No special exceptions were urged. There Was no error in this matter. Morgan v. State, 201 S. W. 654, recently decided. There is quite a lengthy bill of exceptions containing questions propounded to the purchaser at Dallas and his answers with reference to the matterS that OCCurred betWeen himself and the Seller and the conversations. This all was directed to the identity of the appellant as being the party in Dallas. We think it unnecessary to repeat this lengthy bill, but the testimony was admissible. The court qualifies this bill with this statement: “The defendant testified that he delivered to the dealer at Dallas the brass for which the check to Morrison was sent, and that he directed the purchaser of the brass at Dallas to mail the check for same to Tom Morrison at Denison.” We think with this explanation and defendant’s testimony in connection with it, which is verified by the record, that this testimony was admissible. [5] Bill of exceptions No. 7 Will not be considered. The bill Was qualified with this statement by the court: “The term of court at which this case was tried finally adjourned on February 2, 1918. This bill of exceptions was presented to me upon April 5, 1918, and was never in any manner presented or called to my attention before and is now when first presented allowed and Ordered filed herein.” The court allowed the bill and ordered it filed with that statement. This was something Over two months after the adjournment of court. There is no Order in the record allowing the bill of exceptions to be so filed. The bill therefore came too late, and Cannot be COnSidered. We are of opinion the judgment should be affirmed, and it is accordingly so ordered.

(83 Tex. Cr. R. 400)

Ex parte HOLLINGSWORTH. (No. 5027.)

(Court of Criminal Appeals of Texas. May 22, 1918.)

INTOXICATING LIQUORS 3:15 – MILITARY CAMPS–PROHIBITION ZONE–STATUTES—VALIDITY. Acts 35th Leg. (4th Called Sess.) April 15, 1918, § 1, making it unlawful in time of war between United States and another nation to sell, , barter, or exchange intoxicating liquors within 10 miles of the land or buildings occupied or controlled by the United States government and used as a fort, arsenal, training camp, or quarters, is not unconstitutional, but is a valid exercise of police powers. Davidson, P. J., dissenting.

Original application for habeas corpus on relation of G. H. Hollingsworth. Application dismissed.

McLean, Scott & McLean and Leonard M.

Levy, all of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Relator, restrained under a complaint charging, in Substance, that he sold intoxicating liquors in Tarrant county, in time of war between the United States and the German Empire, Within ten miles of a United States military camp designated as Camp Bowie, seeks release by original 8pplication for habeas corpus on the ground that the act of the Legislature upon which the prosecution is based is in conflict with the State COnStitution, and is also in conflict with the law of Congress. -The Section of the act of the Texas Legislature involved is as followS: “From and after April 15, 1918, it shall be unlawful for any person in time of war between the United States and any other nation Or country to sell, barter or exchange any spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, within ten miles of any part of the land or buildings occupied or controlled by the government of the United States, or any department thereof, and used as a fort, arsenal, training camp, quarters, or place where soldiers are, or may hereafter, be camped, stationed, or quartered; aviation field or school where soldiers, sailors, marines, or aviators are being quartered, drilled, or trained for service in any branch of the United States army or navy, except as herein proWided.” Section 5 of the act makes a violation of the provisions of the act a felony punishable by confinement in the state penitentiary for a term Of not less than tWO nor more than five years, without the benefit of the Suspended Sentence. The application, after charging that the relator is held by the sheriff of Tarrant county, On a Warrant issued by reason of the complaint mentioned, and setting out the constitutional provisions with which it is charged to be in conflict, contains the following: “Relator further shows to the court that that portion of Tarrant county, Tex., wherein the offense is alleged to have been committed, has not heretofore adopted local option, and the sale of liquors has been lawfully pursued therein for many years continuously up to and including the 15th day of April, 1918, and but for the inhibition of said act above referred to, such acts were and are lawful.”

No other facts are set out or proved, but those alleged are conceded to be true. The act of Congress is chapter 15, First Session of the Sixty-Fifth Congress (40 Stat. p. 76), approved May 18, 1917, entitled, “An act to authorize the President to increase temporarily the military esablishment of the United States.” Section 12 of the act contains the following: “That the President of the United States, as Commander-in-Chief of the army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the army as he may from time to time deem necessary or advisable.” This section also declares a Violation of such regulations if made would be a misdemeanor, punished With a fine not exceeding $1,000 or imprisonment for not more than 12 months, Or both. Pursuant to this authority the President of the United States

made an Order that alcoholic liquor shall not be sold, given, served, delivered or shipped into the zone created, as follows: “1. There is hereby established a zone five miles wide, circumjacent to the boundaries of every military camp (except that within the existing limits of an incorporated city or town the zone shall not include any territory more than one-half mile from the nearest boundary of such camp).” From a careful investigation of the subject We State the Conclusion that the Section of the act of the Legislature upon which the prosecution is founded, in its application to the locality in which the alleged offense took place, Was not inhibited by the act of Congress, nor the order of the President thereunder. The act of Congress rests upon the clause of the United States Constitution granting power to raise and maintain armies, and upon that subject is supreme and exclusive of state authority. The state possesses no military power further than that given by the Constitution, relating to its militia and to repel invasion. The War and military power is vested in Congress. U. S. Const. art. 1, § 8; Tarble's Case, 13 Wall. 397, 20 L. Ed. 597; U. S. Const. art. 4, § 4, The state possesses the power to regulate intoxicating liquors within its domain, and this is exclusive of the power of \Congress save to the extent that regulations On the subject may be necessary in the exercise of of some other power vested in Congress by the Constitution. Cooley, Const. Lim. (7th Ed.) p. 834; U. S. v. De Witt, 9 Wall. 41, 19 L. Ed. 593. Applied to the present matter, the power of the state, through its constitutional and legislative methods of regulation Of the Sale and use of intoxicating liquors, obtains throughout the State, except in SO far as it may be modified Or Superseded by the President's Order made as an incident to the enforcement of the power of Congress over its armies. The analogy Of the rules declared by the Supreme Court of the United States applicable to the power of Congress Over the Subject of interState COmmerce to the exercise of the power involved in this proceeding is not complete. The cases of Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Railway v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Railway v. New York, 233 U. S. 671, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138, and numerOus others cited by relator, declare the power of Congress over the subject of interstate commerce exclusive, and that when Congress acts all state laws touching interState Commerce are SuperSeded, and in instances the inference from inaction by Congress leads to the same result. Unlike the subject of intoxicating liquors upon which the state's power is complete, regulation of interstate commerce is not within the Scope of the police power of the State. There appearS to be a distinction between the power under the interstate com

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