Summary
In Roach v. State, 138 Tex.C.R. 382, 136 S.W.2d 614, and Boatright v. State, 160 Tex.Crim. R., 273 S.W.2d 632, relied upon by appellant, there was no direct evidence that the accused knew the instrument was a forgery, and a charge on circumstantial evidence was required.
Summary of this case from Cullom v. StateOpinion
No. 20835.
Delivered February 7, 1940.
1. — Forged Instrument — Charge — Circumstantial Evidence.
In prosecution for passing a forged instrument, where no witness testified to having seen defendant forge the check, or having heard him say he forged the same, and there was no direct testimony from any source that defendant had knowledge that the check which he passed was forged, or it was in his handwriting, and the fact that the check was not made by the company, whose act it purported to be, was not shown by any direct evidence, trial court erred in declining to instruct the jury on the law of circumstantial evidence.
2. — Same.
Although there is direct proof of passing a forged instrument, it will not relieve the trial court from charging the jury on the law of circumstantial evidence when the case is one for passing a forged instrument, particularly when the evidence of forgery, as well as the knowledge of the accused that the instrument was forged, depends on circumstantial evidence.
Appeal from District Court of Moore County. Hon. Reese Tatum, Judge.
Appeal from conviction for passing a forged instrument; penalty, confinement in penitentiary for two years.
Reversed and remanded.
The opinion states the case.
Willis Via, of Pampa, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is passing a forged instrument. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant complains of the court's action in declining to instruct the jury on the law of circumstantial evidence, or to give his requested instruction on the subject. We are of the opinion that under the evidence he was entitled to such an instruction, because no witness testified to having seen appellant forge the check or heard him say that he forged the same. There was no direct testimony from any source that appellant had knowledge that the check was a forged one; nor is there any evidence that it was in his handwriting. The fact that the check was not made by the company whose act it purports to be is not shown by any direct evidence, but is to be inferred from the testimony of the sheriff and the injured party, who testified that they made some inquiry in Moore County, but could not find any company by that name. Consequently the conclusion that appellant forged the check or knew it was forged is but an inference arising from the testimony.
This court seems to have uniformly held that although there is direct proof of passing a forged instrument, it will not relieve the trial court from charging the jury on the law of circumstantial evidence when the case is one for passing a forged instrument, and especially is this true when the evidence of forgery, as well as the knowledge thereof on the part of the accused, depends on circumstantial evidence. See Nichols v. State, 39 Tex.Crim. Rep., 44 S.W. 1091; Verner v. State, 35 S.W.2d 428; Mixon v. State, 90 S.W.2d , 832, and authorities.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.