199 S.W. 1113


WATSON et al.
v.
STATE.


(No. 4622.)


Court of Criminal Appeals of Texas.
November 21, 1917.
On Motion for Rehearing, January 16, 1918.

        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

        J. E. and W. R. Watson were convicted of

Page 1114

forgery, and appeal. Judgment affirmed as to defendant first named, and reversed and 
remanded as to the other.

        Boyd & Bell and Geppert & Wroe, all of Teague, for appellant. E. B. Hendricks, 
Asst. Atty. Gen., for the State.

        MORROW, J.

        Appellants were jointly indicted, tried, and convicted of forgery. The instrument 
which they were charged with forging was a note for $151.25, dated Teague, Tex., 
August 20, 1916, payable to the Farmers' & Merchants' State Bank or order at Teague, 
Tex., signed "G. F. Stilwell." The note was on one of the printed forms of the Farmers' & 
Merchants' State Bank of Teague. G. S. Stillwell testified that he had been a customer of 
the bank, but had ceased to do business with it about 90 days before it was taken over by 
the state department. He further said that he did not sign the note nor authorize any one to 
sign the note for him. He said he did know who signed it; the signature did not look like 
his, and he had never been requested to pay it.

        A witness named John Bagett testified to his acquaintance with appellants, and that 
they were connected with the bank mentioned, and that he had worked for them five 
years prior to June, 1916; that J. E. Watson was active vice president, and W. R. Watson 
was cashier. He testified that he was familiar with their handwriting, and said:

        "I think J. E. Watson wrote the body of this note, and the figures seem to be in his 
handwriting, the serial number."

        He said the handwriting on the note resembled J. E. Watson's handwriting; that he 
was not positive who wrote it, but that it was shaded like J. E. Watson wrote, and that 
was about all that resembled his handwriting; that the note had no revenue stamp on it; 
and that he thought that all notes that were used as assets of the bank had revenue stamps 
on them.

        Another witness, Chancelor, testified that he had worked in the bank, knew 
appellants, and was familiar with their handwriting, and that J. E. Watson wrote the 
"$151.25 and the 8/20," and it looked like he wrote the name of "G. S. Stillwell"; that all 
the writing on the note was written by the same party; that all the Watsons made loans 
and took notes for the bank when he worked there in 1911. Cross-examined, he stated:

        "Yes, sir, I think J. E. Watson wrote the note but I didn't see him do it;" that the note 
had been shown him before; that he had formed the opinion that J. E. Watson wrote it; 
that that was his opinion when he took the stand.

        He said:

        "I am not uncertain about who wrote the name `Stilwell,' but we will all hesitate. I 
did not have an opinion as to who wrote the note before I saw it."

        J. D. Moore testified that he was appointed receiver of the Farmers' & Merchants' 
Bank of Teague on the 29th of August, 1916, and that the note in question, and several 
other notes mentioned by him, were turned over to him as such receiver; that the notes 
mentioned, including the one in question, when turned over to him, were listed separately 
from the other assets of the bank, and that, taking these notes into consideration, there 
were more assets than necessary to balance the books. Other witnesses testified that the 
Stillwell note, the one in question, was among the assets of the bank, and Bank Examiner 
McKinnon testified that he had examined the bank on various occasions, and that the 
appellants had assisted him in going over the assets when he requested them to do so; that 
he had talked to them all with reference to the notes; that he examined the bank in May, 
1916, and that he had discussed with them various notes, including some of the notes 
described in the list which Receiver Moore identified; that he was not certain that he 
talked to W. R. Watson about these particular notes. Another witness testified that he was 
present when McKinnon went over the notes described by him with appellant, J. E. 
Watson. Several witnesses were introduced who testified that the notes mentioned by 
Moore, receiver, as in the list and which purported to bear the signature of the witnesses 
were never signed by them or under their authority. These witnesses declared that they 
had not been called upon to pay them. Several witnesses for the defendants testified that 
they were acquainted with the signatures of J. E. and W. R. Watson, and that in their 
opinion the signature to the Stillwell note was not written by either of them. They gave it 
as their opinion that part of the body of the note was written by J. E. Watson. There was 
some testimony that there was a package of notes kept on J. E. Watson's desk which were 
not used in balancing the books of the bank, and to the fact that the notes that were used 
for that purpose bore revenue stamps, and that the Stillwell note was without revenue 
stamp.

        Appellant presents three bills of exceptions: First, relating to alleged misconduct of 
the jury; second, with reference to refusal to instruct a verdict for W. R. Watson; and the 
third, omitting the formal parts, is as follows:

        "Be it remembered that upon the trial of the above entitled and numbered cause, 
after the state had rested, the defendants, J. E. and W. R. Watson, filed and presented to 
the court the following motion: `Now come J. E. and W. R. Watson, defendants herein, 
and move the court to exclude all the testimony introduced with reference to alleged 
collateral forgeries, because there has been no evidence introduced showing that either 
one of these defendants participated or was connected in any way with said alleged 
forgeries.' * * * The court, after considering the above motion, overruled same, and that 
the said defendants, J. E. and W. R. Watson, then and there excepted in open court, and 
now tenders this bill of exception, and asks that the same be signed and filed as a

Page 1115

part of the record in this cause. [Signed by attorneys for defendants.]"

        This bill of exception is quite meager. It fails to set out the evidence which it 
complains of the failure of the court to exclude or to identify with certainty or show the 
connecting circumstances rendering it inadmissible. Mallory v. State, 37 Tex. Cr. R. 482, 
36 S. W. 750, 66 Am. St. Rep. 808; Phillips v. State, 50 S. W. 378; Kyle v. State, 53 S. 
W. 846; C. C. P. art. 744; Vernon's Crim. Stats. vol. 2, p. 542, note 29, and cases cited.

        We infer that the other forgeries mentioned in the bill relate to the various notes that 
were described in the testimony of Moore, the receiver of the bank, as having been listed 
and turned over to him, and those described by the witness McKinnon as having been 
discussed by him with the appellants in his examination of the affairs of the bank. 
Speaking of this discussion, he said:

        "We had all the notes of the bank up there and we discussed them; had them up one 
by one."

        And in this connection he identified from recollection a number of the notes 
described in the list referred to by witness Moore with reference to which notes the 
purported makers gave testimony to the effect that they were not executed by them or by 
their authority. This testimony was properly limited in the court's charge, and if the 
question was properly raised, we cannot say that there was error in its admission. There 
was evidence from which the jury was authorized to form the conclusion that the various 
instruments mentioned were in possession of the defendants in connection with the note 
upon which the prosecution was founded, and that they were all put to a common use, 
namely, to swell the apparent assets of the bank of which the appellants were the active 
officers. Ham v. State, 4 Tex. App. 645; Mason v. State, 31 Tex. Cr. R. 307, 20 S. W. 
564; Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. 751, 66 Am. St. Rep. 808; Hennessy 
v. State, 23 Tex. App. 340, 5 S. W. 215; and other cases cited in Branch's Ann. P. C. p. 
864, § 1412.

        There were allegations asserting there were comments upon defendants' failure to 
testify; that there was separation of the jury; that one of the jurors did not agree to the 
verdict; that there was evidence considered with reference to the character of appellants, 
not introduced on the trial. Three supporting affidavits were attached to the motion, one 
made by juror R. H. Red, one by juror Pyrtle Blount, and one by Eubanks, the officer in 
charge of the jury. Evidence was heard upon the motion, each of the 12 jurors and the 
officer mentioned testifying. The evidence relied on to show separation was the fact that 
the jurors occupied two rooms apparently in the courthouse, both of which were used for 
sleeping rooms, part of the jury sleeping in one, and part in the other, which rooms seem 
to have been across the hall from each other, and doors connecting them being open, and 
the jurors throughout their deliberations used the entire apartment. Also upon the fact that 
after the verdict had been agreed upon, written, and signed, and Eubank, the officer in 
charge, requested to advise the judge, and while they were waiting for the judge to come 
to the courthouse, one of the jurors, Red, assuming that the transaction was complete, 
went down the stairway and encountered the officer, Eubank, remarking in effect, "We 
have played hell; we have written a verdict;" that the officer directed the juror to rejoin 
the others, which he did without contact or conversation with any other person or without 
any further conversation with the officer. The separation of a jury after it is impaneled 
and sworn to try a felony case is prohibited by statute (article 745, C. C. P.). Passing upon 
circumstances similar to those detailed, it has frequently been held by this court that a 
reversal would not result where it was shown affirmatively that there was no influence 
brought to bear upon the jury in consequence of the circumstance and no opportunity 
therefor. The purpose of the statute is to preserve the purity of the verdict, and where it is 
shown that a temporary separation of one of the jurors from his fellows did not and could 
not have affected the verdict or impartiality of the trial, a reversal is not required nor 
authorized. Robinson v. State, 58 Tex. Cr. R. 551, 126 S. W. 276; Watson v. State, 52 
Tex. Cr. R. 87, 105 S. W. 509; Wakefield v. State, 41 Tex. 556; Jones v. State, 13 Tex. 
168, 62 Am. Dec. 550; Jack v. State, 26 Tex. 1; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. 
W. 887; Galan v. State, 68 Tex. Cr. R. 200, 150 S. W. 1171; Webb v. State, 69 Tex. Cr. 
R. 413, 154 S. W. 1013; Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 731; Lounder v. 
State, 46 Tex. Cr. R. 125, 79 S. W. 552; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 
544; Branch's Ann. P. C. p. 299, and cases cited; Vernon's An. C. C. P. p. 562, and cases 
cited.

        The receipt of other testimony reflecting upon the character of the appellants was 
disproved; in fact, there was no evidence supporting it.

        The intimation that the juror Red, after agreeing to the verdict, desired to retract his 
acquiescence, was a contested issue, and one upon which the court would not have been 
unauthorized to have found against the appellants. It is an inquiry, however, that we think 
could not legitimately be made. It is a character of impeachment of the verdict which is 
contrary to public policy. Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052. The juror 
Red claimed that he consented to the verdict believing the appellants were not guilty; that 
he told the foreman he desired to change his verdict; that the foreman told him he could 
not do so. This, as above stated, was controverted in substance, the foreman

Page 1116

claiming that what occurred about it was in a joking manner, the juror Red remarking 
while they were waiting for the judge that, if he did not come pretty soon, he would take 
it back. Red said, however, that when inquired of by the court that he acquiesced in it for 
the reason that he wanted to go home. Similar facts were passed upon against appellant's 
contention Bacon's Case, 61 Tex. Cr. R. 210, 134 S. W. 690, and Pilot's Case, 38 Tex. Cr. 
R. 515, 43 S. W. 112, 1024, and the principle controlling these cases is affirmed Henry v. 
State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74; Johnson v. State, 27 Tex. 
758.

        On the question of alleged comment upon appellants' failure to testify, it was 
claimed that such comment was made by the juror Bert McLellan and others not named. 
McLellan denied any such comment. The juror Red claimed that during the deliberations 
and before the verdict, the juror McLellan remarked that, if the defendants were not 
guilty, they would have taken the stand. Most of the jurors testified that no reference to 
the appellants' failure to testify was made in their presence. One juror besides Red 
claimed that he heard McLellan make the remark attributed to him, and one of two other 
jurors thought there was some reference to the fact that the appellants did not take the 
witness stand. The statute (article 790, C. C. P.) uses the following language:

        "The failure of any defendant to testify shall not be taken as a circumstance against 
him, nor shall the same be alluded to or commented on by counsel in the cause."

        It has often been held to be the duty of the court to protect an accused against the use 
of his silence at a trial as a circumstance against him; and in compliance with this duty it 
has often been necessary to order a new trial. Where a defendant on trial fails to testify, it 
is a fact always known to the jury, and in recognition of this this court has drawn a 
distinction between the mere reference to the failure to testify and the consideration of it 
as a circumstance against him. Leslie v. State, 49 S. W. 73; Jenkins v. State, 49 Tex. Cr. 
R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. 
W. 936; Veach v. State, 71 Tex. Cr. R. 181, 159 S. W. 1069; Mason v. State, 81 S. W. 
718; and other cases listed on the subject in Branch's Ann. P. C. p. 293. The cases in 
which reversals have been ordered on this ground have been those in which the 
discussion or comment upon the prisoner's failure to testify, and its use as a circumstance 
against him, has been uncontroverted, as Tate's Case, 38 Tex. Cr. R. 265, 42 S. W. 595, 
and other cases listed in Branch's Ann. P. C. p. 292, § 569, or in cases where such 
comment and use have been established by evidence so cogent as to impel this court to 
annul the finding of the trial court to the contrary. When the allegations in the motion for 
a new trial charging that the jury misused the accused's failure to testify to his prejudice 
are controverted, and on investigation and conflicting evidence determined against him, 
the finding of the court is given the weight attaching to any other question of fact 
submitted for judicial determination. Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; 
Adams v. State, 48 Tex. Cr. R. 452, 93 S. W. 116; Sheffield v. State, 48 Tex. Cr. R. 481, 
89 S. W. 274; Douglass v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 
930; Blount v. State, 58 Tex. Cr. R. 509, 126 S. W. 570; and other cases listed in 
Branch's Ann. P. C. p. 295, § 574, subd. 3.

        In the instant case the inquiry upon the controverted issue as to the misconduct of 
the jury was full; and while in some particulars conflict was developed as to whether 
there was any reference to the failure of the appellants to testify, the finding that there 
was none is supported, and, further, the conclusion of the court that no inhibited misuse 
of the defendants' failure to testify entered into or affected the verdict is established.

        On the issue as to whether J. E. Watson wrote the alleged forged note or wrote the 
purported signature of Stillwell thereto there was a conflict of evidence. This evidence 
consisted mainly in the testimony of witnesses claiming to know his signature. It was not 
a case depending upon the comparison of handwriting coming within article 814, C. C. 
P., prescribing the quantum of proof where the signature was denied under oath, but upon 
direct testimony of those claiming to have personal knowledge of the handwriting, such 
as was used Hughes v. State, 59 Tex. Cr. R. 294, 129 S. W. 837, and other cases on the 
subject cited Jackson v. State, 193 S. W. 302. There was evidence of possession of the 
instrument by the appellant and his use of same bringing him into close proximity with 
the alleged forged note. Gaut v. State, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton's 
Crim. Law, § 931; Fischl v. State, 54 Tex. Cr. R. 55, 111 S. W. 410. There was a serial 
number on the note, No. 3822, and evidence indicating that this number was a part of the 
system of the bank of which appellants were officers and managers in dealing with its 
bills receivable. The only direct evidence as to the execution of the instrument which we 
find in the record against W. R. Watson is some evidence that this serial number was in 
his handwriting. It is true that there were some circumstances such as his connection with 
the bank, his joint possession of this and other notes referred to above, claimed to have 
been spurious and used to swell the bank's assets, but we regard the circumstances 
insufficient to support the conviction of W. R. Watson. On the other hand, we think that 
the state's evidence that appellant J. E. Watson wrote the alleged forged signature, in 
connection with the other facts testified to on behalf of the state, are sufficient to establish 
his guilt, and, this being true, the verdict of the jury against him

Page 1117

is conclusive, in the absence of errors in the trial, and, none having been pointed out, the 
judgment of the lower court as to J. E. Watson is affirmed, and that as to W. R. Watson is 
reversed and remanded.


On Motion for Rehearing.

        It is claimed that one of the jurors who rendered the verdict against appellant was at 
the time insane, and therefore an incompetent juror, and that in consequence of such 
insanity the verdict of the jury is void.

        It appears from the motion that the knowledge of this alleged insanity of the juror 
was not possessed by appellant at the time of the trial and came to him after the term of 
the court at which he was tried had adjourned. From this it is apparent that the matter was 
not raised in the court below, and is not raised here by anything upon the record of the 
trial in the court below. Consideration of it would involve an inquiry by this court into the 
question of fact and its determination from evidence adduced of the sanity or insanity of 
the juror. This is not within the province of this court on appeal. It is confined to the 
record made in the court below in determining whether or not a legal trial was had. The 
judgment before this court is one which in the state of the record is presumed on appeal 
to have been based on the verdict rendered by a lawful jury. Relief against a void 
judgment upon matters not contained in the record on appeal must be sought in the 
district court, which is equipped to determine the facts, and from its judgment upon such 
proceeding appeal will lie to this court.

        The other questions raised in the motion for rehearing are fully considered and 
discussed in the original opinion.

        The motion for rehearing is overruled.