text:
    WHITE v. STATE.
    (No. 3488.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.)
    1. Witnesses &wkey;>344r — Impeachment — Competency op Evidence.
    Refusal of the question of defendant in homicide to state’s witness, if her husband had not divorced her for connection with other men, its only purpose being to show her character, and neither deceased nor defendant having had any connection with the divorce proceeding, was not error.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;344.]
    2. Witnesses <&wkey;344 — Character op Witness — Paeticulae Facts.
    Refusal of the question of defendant in homicide to state’s witness, if her husband had not shot her for a certain transaction, with which it was not proposed to connect deceased, was not error.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;344.]
    3. Homicide &wkey;>163 — Evidence—Relevancy.
    Defendant in homicide could not show that deceased had recently taken the wives of several men; he not contending any of the husbands could have killed deceased, or that "he was related to the women or their husbands.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. &wkey;163.]
    4. Ceiminal Law <&wkey;382 — Evidence—Relevancy — Bail Bond.
    Defendant in homicide could not introduce his bail bond to appear and answer the indictment, it being material to no issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 847-864; Dee. Dig. <§=» 382.]
    5. Witnesses <&wkey;358 — Redieect Examination.
    Defendant having sought to impeach state’s witness S., by eliciting from C., another state witness, on cross-examination, testimony that he talked with S., and did not remember S. saying he saw defendant with a gun, C. could, on redirect, be further examined on the matter, and have his memory refreshed as to telling the district attorney, certain others being present, that S. had always claimed defendant had a gun.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. &wkey;358.]
    6. Criminal Law <&wkey;939 — New Teiai^-Newly Discoveeed Evidence — Diligence.
    There was lack of diligence, depriving defendant of any right to new trial for newly discovered evidence of H. and R. that they did nqt see defendant at a certain time and place; they having been in attendance at the first trial, and other witnesses having testified that, when with H. and R., at such time and place, they saw defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dee. Dig. &wkey; 939.]
    7. Criminal Law <&wkey;942 — Newly Dscoveeed Evidence — Impeaching Evidence.
    Newly discovered evidence, the purpose of which is merely to impeach or discredit a witness, does not authorize a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. <§=33942.]
    8. Witnesses &wkey;>311 — Impeachment.
    It would not discredit the testimony given at the trial by a state’s witness, that he was not called as a witness at the examining trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1072-1075; Dec. Dig. &wkey;311.J
    9. Criminal Law &wkey;938 — New Trial — Hearing — Evidence.
    If the testimony of a state’s witness, given on the preliminary trial, affects his testimony at the trial, defendant, having it in his possession, should then offer it, and not wait to do so on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. &wkey;>938.]
    10. Homicide <&wkey;234 — Identity op Murderer — Sufficiency of Evidence.
    Evidence in a murder case held, sufficient to show defendant was the guilty party.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. <&wkey;234.]
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Tom White was convicted of murder, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted and convicted of murder, and his punishment assessed at death.

This case was submitted March 2d, and at that time was also submitted a motion to postpone tile hearing until fall. This we declined to do, but had the clerk notify appellant and his counsel that reasonable time would be granted in which they might file briefs herein. More than two months have elapsed since that time and no briefs have been filed, and we therefore judge that counsel in the trial court do not desire to, or have not been employed to, brief the case on appeal.

The first bill complains that the court would not permit appellant’s counsel to ask Catherine Thomas, a witness for the state, if her husband had not got á divorce from her, and on the ground of her connection with other men. The only purpose it is stated was to show the character of the witness. As deceased, nor appellant, is not claimed to have had any connection with the divorce proceedings, the court did not err in his ruling.

• In the next bill it is shown that appellant desired to ask Ben Hopkins “if it was not a fact that Sam Johnson (deceased) had within a few months prior to his death induced the wives of two or three colored men to leave their husbands to associate with him.” As it is not proposed to show, nor claimed, if Sam Johnson did do so, that the wives of the men were in any ways related to appellant, or that he was even acquainted with them, the court did not err in sustaining the objection to the question. Neither was it error to refuse appellant permission to ask Richard Thomas “if it was not a fact that Sam Johnson and Willis Bass had a fuss about Sam Johnson taking Bass’ wife from him.” No effort was made to show, nor is it contended, that Willis Bass was in position where he could have fired the shot that killed Sam Johnson; nor is it sought to Be shown that appellant was in any ways related to Bass or his wife.

The defendant also desired to ask Polly Jenkins, a witness for the state, “if her husband had not shot her because he caught her in illicit intercourse with a white man.” Sam Johnson, deceased, was a negro, and it was not proposed to connect him in any maimer with the transaction. Therefore the court did not err in his ruling.

The appellant also sought to prove by John Cunningham that deceased had, shortly before his death, taken the wives of two or three men from their husbands. The court correctly held such testimony inadmissible. The appellant does not show, nor contend that he could show, that the husbands of either of the women were in position that they could have killed the deceased, nor that the husbands of the women, nor the women were in any way related to appellant. If deceased was a libertine, this would not authorize appellant, in the nighttime, tol shoot him through a window, if he did so, as contended by the state.

Appellant desired to introduce 'the bail bond he was under to appear and answer to this indictment. This would be material to no issue in the case.

The only other bill in the record to any proceedings had-on the trial is the one relating to the testimony of John Cunningham. Deceased was killed at a church, in the nighttime, and while he (deceased) was hanging a lamp. The evidence shows that he was shot by some one standing outside of and in the rear of the church, the gun being held so that a window sill in the church building was powder burned. Aus Smith testified on the trial that on his way to the church in company with Catherine Thomas, Cindy Reece, and Pokie Harrison, he passed appellant, Tom White, who was near to and behind Thad Williams; that Tom White was riding Beulah Douglass’ horse, and had a gun in his hands. He says that as he went in the church he saw appellant ride towards the back of the church, and in a few moments after he got in the church the gun was fired from the back of the church which killed Sam Johnson. The state introduced John 'Cunningham to prove he found a man’s tracks at the back window, and he followed the tracks for about 50 yards, and found where a horse had been hitched; that he followed the horse tracks for some distance and examined the horse tracks; that there was a gap out of one of the hoofs of the horse, and the track showed it was tolerably long, oblong foot, long heel to it; that he examined Beulah Douglass’ horse (which all the evidence shows appellant was riding that night), and one hoof had a gap in it, and the horse had a hoof which was longer than the others; that he saw tracks made by this horse, and they were like the ones he saw on the ground at the back of the church. On cross-examination, the witness, at the instance of appellant, testified that the next morning and on the day of the examining trial he talked with Aus Smith, and he did not remember Him saying that he saw appellant with a gun the night of the killing. On redirect examination the witness was asked if he had not told the district attorney in the presence of Turner Ross, Harvey Lilley, and E. O. Fuller, that Aus Smith had always claimed that Tom White, appellant, had a gun. To which question the witness Cunningham answered: “Zes, sir; he claimed that.” As the witness had testified at the instance of appellant that he did not remember Aus Smith saying that appellant had a gun, on redirect examination it was permissible to refresh his memory by asking the questions that were propounded. And it may be said that on recross-examination the witness testified: “In all my conversations with Aus Smith he always claimed Tom White (appellant) had a gun.” It is thus seen that appellant sought to impeach the witness Aus Smith by Mr. Cunningham; but, when Mr. Cunningham had his attention called to the matter, his testimony tended to corroborate! Aus Smith and not impeach. What Aus Smith told him would not have been admissible on direct examination - by the state; but, after appellant had gone into the matter and elicited from the witness the answer he did, then it was permissible for the state on redirect to further examine the witness on the matter brought out by defendant.

If it should be held that this was an attempt on the part of the state to impeach its own witness, as the witness Cunningham had testified on cross-examination as to facts injurious to the state’s case, it would not be error to admit the testimony adduced by the state on redirect examination. C. C. P. art. 815; Self v. State, 28 Tex. App. 398, 13 S. W. 602; Blake v. State, 38 Tex. Cr. R. 377, 43 S. W. 107; Clanton v. State, 13 Tex. App. 139.

The only other question raised by the record is that it is claimed the court erred in not granting him a new trial on what he terms to be newly discovered evidence. He attaches to his motion the affidavits of Pokie Harrison and Cindy Reece, both of whom say they would testify that they went to the church that night in question with Aus Smith and Catherine Thomas; that they saw Thad Williams, but did not see appellant, Tom White, on that night. Catherine Thomas had testified on the trial that she went to the. church with Aus Smith, Cindy Reece, and Pokie Harrison; that she saw Tom White, appellant, near the church. Aus Smith testified on the trial that he went to the church with these people and that he saw appellant, Tom White, near the church, and he was right behind Thad Williams; that appellant had a gun, and he saw him ride off towards the back of the church but a few minutes before the gun was fired. All the alleged newly discovered testimony is that Cindy Reece and Pokie Harrison say they would swear they did not see appellant at the time Aus Smith and Catherine Thomas say they saw him. This may be true, but it would have but slight tendency to show that Aus Smith and Catherine Thomas did not see him. The record also discloses that Cindy Reece and Pokie Harrison were in attendance on this trial as witnesses; that they were sworn and placed under the rule; that, when Aus Smith and Catherine Thomas testified Cindy Reece and Pokie Harrison were with them when they saw appellant near the church, state’s counsel went to see them, and asked them if they aiso saw appellant there near the church, and they informed him they did not..When the two witnesses testified that Poki£ Harrison and Cindy Reece were with thehi at the time they said they saw appellant, both being in attendance on court, it would have been as easy for appellant and; his counsel to have seen these two women .'during the trial as it was immediately after the trial. Aus Smith and Catherine Thomas were the first witnesses placed on the stand by the state, and they both put appellant and his counsel on notice that Cindy Reece and Pokie Harrison were with them. Pokie Harrison and Cindy Reece were then in an adjoining room in attendance on the court, and the slightest diligence would have discovered at that time that they would testify that they did not see Tom White, appellant, on that occasion. In Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322, and Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297, it was held that where it appeared that the proposed witness had been subpoenaed in the case and was in attendance on the court, but was not put upon the witness stand to testify, the testimony does not come within the rule governing newly discovered testimony, and in Carrico v. State, 36 Tex. Cr. R. 618, 38 S. W. 37, it is held that a new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. For other cases, see White’s Ann. Proc. § 1149. In this case the record discloses that by the use of the slightest diligence it could have been discovered during the trial that the two negro women would so testify; they were in attendance as witnesses in this case, and appellant and his counsel were put on notice by the testimony of Aus Smith and Catherine Thomas that the two women were there, and the testimony does not come within the rule authorizing a new trial on account of newly discovered testimony. In addition to this, for them to say they did not see him there that night would not show that Aus Smith and Catherine Thomas did not see him. Thad Williams, a witness for defendant, testified that appellant was with him that night; but he places him at a different point, some half a mile or more from the church.

The affidavit of Clyde Butler shows that his testimony would not be admissible as original testimony, but only admissible as tending to impeach Aus Smith. It has always been the rule that newly discovered evidence will not authorize a new trial if the purpose of such evidence be merely to impeach or discredit a witness who testified in the trial. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Miller v. State, 35 Tex. Cr. R. 209, 33 S. W. 227; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Hauck v. State, 1 Tex. App. 357; Brown v. State, 6 Tex. App. 286; Jackson v. State, 18 Tex. App. 586.

When the hearing on the motion for new trial was had, appellant offered in evidence on the motion the testimony taken at the examining trial of appellant, to show, as he contends, that Aus Smith did not testify on the examining trial. This was not a disputed issue on the trial, and the fact he was not called as a witness on the examining trial would not discredit his testimony given on this trial. Appellant also says that he offered this testimony, on the motion for bow trial, “to affect the testimony of the witness John Cunningham.” Appellant was in possession of this testimony taken at the examining trial during the trial of this case, and, if he desired to offer it in evidence, then was the time to do so, and not wait and offer it on the hearing of the motion for new trial. We have read the testimony of John Cunningham on the trial of the case, and his testimony given at the examining trial, and we cannot see in what way it would affect his testimony given on the trial of the case, and appellant does not suggest wherein it would do so.

The facts in this case show an assassination by some one, the state depending on circumstantial evidence to prove that appellant was the -guilty party.

Justice C. M. Harrell testified that, a short time before Sam Johnson was killed, he had filed a complaint against appellant charging appellant with unlawfully carrying a pistol. Pie says appellant had pleaded guilty in his court to making an assault on Aus Smith, and when doing so remarked, “The next man who filed a complaint against him would not live to swear to it in court.” Because of this remark, he would not tell him who filed the complaint charging him with carrying a pistol, but appellant picked up the docket and looked at it and saw that the complaint had been filed by Sam Johnson (deceased), when he remarked: ' “The damn long-legged son of a bitch! It will never do him any good.”

Catherine Thomas testified that not long before the killing she heard appellant say he was going to kill Sam Johnson if it was the last thing he did.

Ben Hopkins testified that he saw appellant and Sam Johnson on the day that appellant learned that Sam Johnson had filed a complaint against him; that appellant was cursing Sam Johnson; that Sam Johnson would not stop, when appellant said: “You damned son of a bitch! You won’t swear against me in court.”

Jennie Thomas testified that she is a cousin of appellant, and she saw him at the Harrell church; that appellant was cursing and going on, and said “he was going to kill Sam Johnson if it was the last thing he did.” She further testified that since Sam Johnson was killed appellant had come to her and tried to get her to say that what he said at the Harrell church was that he was going to kill little Aus Smith, but she declined to do so, when appellant remarked, “You know, Cousin Jennie, if they prove that on me they will hang me.”

Richard Thomas, the husband of Jennie Thomas, says he was present and heard this conversation, and that appellant had also tried to get him to get his wife to change her testimony.

Martha Stanley testified she heard appellant talking to Polly Perkins; that appellant was talking about the complaint filed | against him by Sam Johnson for carrying a pistol, and said during his remarks that he was going to kill Sam Johnson; that Polly Perkins remonstrated and told him that talk would hang him, when appellant said, “I am going to do it in the dark.”

Polly Perkins says this conversation took place, and when- she remonstrated appellant replied, “I will kill him in the night, and nobody will know who done it.” Other witnesses testify to similar threats made by appellant.

Catherine Thomas and Aus Smith say they saw appellant at the church where Sam Johnson was killed. Aus Smith says he had a gun, and was riding Beulah Douglass’ horse. The shot that killed deceased was fired through a back window of the church. Aus Smith says as he started in the church he saw appellant ride towards the back of the church. All the witnesses testify that appellant was riding Beulah Douglass’ horse that night. John Cunningham says he was called there shortly after the killing, and he kept every one away from the back of the church until the sheriff came. The sheriff was dead at the time of this trial. Cunningham says the back window sill of the church was powder burned; that tracks were found there, and traced to where a horse had been hitched; the horse made a peculiar track, as stated in his testimony hereinbefore given. He says he found the gun wads. One wad was marked No. 4 squirrel shot. Deceased was shot with buckshot. After the arrest of appellant, officers went to his home and found his gun under the foot of the bed. The gun showed to have been recently fired. It was loaded—the wad marked No. 4 squirrel shot. When the wad was taken out, the cartridge was loaded with buckshot. John M. Harrell testified:

“I lived about three-quarters of a mile from the church house where Sam Johnson was killed. I went to that church the day after the killing. After the crowd left that evening or early in the morning, I went back there and made a good examination of the tracks around there. I looked at some tracks north of and back of the house. On the pine straw about 34 or 40 yards from the church, it showed an impression like a horse’s track. It looked like the horse’s tracks started off from back of the church a little northwest and in a north direction. In one place it looked like where an animal had stood for a few minutes. Prom that place I saw some impressions in the pine straw; couldn’t see much sign, apparently only where it led up a little trail. I examined the tracks in the trail. They showed one of fhe horse’s feet would slip a- little; the horse’s hind foot would slip a little when he stepped. It had been cut. It showed in that little piece of trail plain for a yard or four or five steps. There was a split in one foot; he didn’t lift each foot, but his hind foot, where it' hit the ground, it would slip a little. There was a sorrel horse in that community that made a track like that. It belonged to Beulah Douglass. One hind foot of her horse would slip. Of course, the faster you rode him it would slip a little bit more. Anyway, when he walked his hind foot \frould slip, it seemed like. I looked at the tr|ick of the horse after I made the exam-¡nation up there behind the church. It made the same kind of track as that up there behind the church — slipping. It had a split or gotch in one foot. I had seen that horse’s track often and had occasion to notice it before. I could tell his track from any other horse.”

Mr. C. M. Harrell testified that the gun was delivered to him by Mr. Cunningham, and he and his .brother, Dr. Harrell, examined it; that Dr. Harrell ran his finger in the barrel, and it showed to have been fired in the last day or two; that it was a 12-gauge gun, and the shell in it was marked either No. 4 or No. 6 shot; that when they took off the wad they found the shell loaded with buckshot.

These and many other circumstances were shown on the trial, and we think the evidence fully sustains the verdict.

The judgment is affirmed.
      <@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SUNDAY v. STATE.
    (No. 3568.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    1. Homicide <S=»169 — Evidence — Circumstances Preceding Homicide — Peace Proceedings by Dependant.
    In a prosecution for murder, where the state was permitted to prove that after trouble between defendant and deceased on the day before the killing defendant went to town, and there purchased shotgun shells loaded with buckshot, as tending to show premeditation, it was error to exclude evidence that before purchasing the shells defendant went to a justice of the peace and tried to have deceased put under a peace bond, which the justice refused to do.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. (@=>169.)
    2. I-Iomicide (@=>169 — Evidence — Circumstances Preceding Homicide — Peace Proceedings by Dependant.
    In a prosecution for murder, where the' state claimed that defendant and his brother, who was jointly indicted with him, had waylaid deceased, while they claimed self-defense, and there was evidence that defendant’s brother had been told that deceased and another had threatened to kill him if he did not move off from the place of deceased’s father-in-law, it was error to exclude evidence that just before the killing defendant’s brother had employed witness to move him off from the place, as a circumstance tending to show an effort by defendant to avoid trouble.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. ¡@=>169.]
    3. Criminal Law ¡@=>508 — Testimony op Co-dependant.
    Under the provision of the Criminal Code that one charged jointly with the commission of an offense is not a competent witness, the brother of defendant, jointly indicted for the homicide, who had been convicted, but sentence suspended, is not competent to testify on behalf of defendant.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1199-1123; Dee. Dig. <@=> 508.) ...
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    Andrew Sunday was convicted of murder, and he appeals.
    Reversed and remanded.
    C. W. Nugent and J. T. Rucks, both of Con-roe, and Dean, Humphrey & Powell; of Huntsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant, was convicted of murder, and his punishment assessed at eight years’ confinement in the penitentiary, from which judgment he prosecutes this appeal.

It may be said to be conclusively proven that George Sunday, a brother of appellant, was a tenant of John Dunks, a man some 70 years of age; that, while George Sunday and appellant, his brother, were gathering their cane crop, some trouble arose between the landlord and tenant. Deceased, Jack Phillips, and George Rabun had married daughters of Mr. Dunks, and after the trouble between Mr. Dunks and George Sunday the deceased and George Rabun went down into the field where the two Sunday boys were at work gathering their cane crop. Deceased and George Rabun were stout, able-bodied men, weighing 175 to 180 pounds each, while appellant and his brother, George, were small men, weighing from 120 to 130 pounds each. The state’s witness George Rabun says that deceased went to the field fence and called George Sunday, telling him he wanted to see him; that Sunday replied, “If you want to see me you will have to come down here;” Rabun and deceased then went down into the field, and Phillips (deceased) remarked, “Well, I see you have got one-half of the cane through,” and George Sunday replied, “I am through with my part of it, and we are not going to have anything to do with the rest of it;” that deceased then remarked, “I suppose you cursed old man Dunks yesterday and threatened to knock his brains out with a brush hook,” George Sunday replying, “It is a damn lie; I didn’t do any such thing;” that deceased then knocked George Sunday down, calling him a “whorehouse s-n of a b-h.” Rabun says appellant interceded then, and asked deceased not to strike George any more, when he told appellant to “shut your mouth, you d-d son of a b-h;” that he nor deceased did not draw a knife, nor threaten to cut the throats of the two Sundays; that, while they were talking-to appellant and had turned to call Mr. Dunks, George Sunday left and went to his house; that, believing he had gone for a gun, he and deceased left and went home.

Appellant says:

. That his brother, George, and Mr. Dunks had had some words about the cane crop, but they had adjusted their differences; that deceased, Jack Phillips, and George Rabun came down in the field, and when they got down there “George Rabun taken me in the collar with his hand and Jack Phillips taken my brother, George, in the collar and drawed their knives on our throats, and Jack Phillips told my brother, asked him how come him to take his cane knife to old man Dunks. My brother told him — says, ‘Jack, I didn’t take no cane; knife to old man Dunks.’ He says, ‘You are a God damned lie; you did do it, and Mr. Dunks says you did it.’ Pie hit my brother up side the head with his fist, and he reached and got a stalk of sugar cane off the wagon and hit him across the back of his head, and told him — says, T will cut your God damned throat,’ and knocked his head back with his arm and started to cut his throat. I said, ‘Jack, please don’t cut his throat.’ He waved his knife at me; he says, ‘If you say ary other word I will cut your God damned throat, you mother-fucking son of a bitch from, ear to ear.’ George Rabun says, ‘Yes; if you say ary other word, I will cut your God damned throat.’ Jack says, ‘You are nothing but a set of God damned mother-fucking sons of bitches, the whole business of you, womenfolks and all, and mother.’ I will tell you what he said about my mother; he told me my mother, sisters, and wife were not nothing but a set of mother-fucking sons of bitches. He says, ‘God damn a man who would take it; you got to take it; you can’t help yourself.’ He told me — says, ‘You can’t stay in that house nary nother night;’ says, ‘If you do we will kill every one of you.’ He says, ‘You can’t stay there nary nother night.’ When he was talking to George, threatening what he would do to George, I asked him not to cut George’s throat, and he told me if I said ary nother word he would cut my God damn throat, ‘you mother-fucking son of a bitch.’ George Rabun told me if I opened my head ary other time, said ary other word, he would cut m'y throat from ear to ear. I guess George Rabun would weigh 180 or 190 pounds.”

Appellant desired to prove what George Sunday to Id his wife when he got to the house, and what he appellant told George and his wife when he met them coming from the house. We do not think the court erred in excluding such statements. They were not res gestae of the killing, which took place the next day, and would be what is termed self-serving declarations.

Appellant testifies that when he started to the house he met George Sunday and his wife, and told George not to go back down there; that deceased and Rabun had said they were going after their guns and would kill them all, and that they had to move off the place; that George and his family at once left and went to their brother-in-law’s, a Mr. Field; that he and George then went to Montgomery and saw the justice of the peace. The court would not permit Mm to testify what Ms mission was, what he said to the justice of the peace, nor what the justice said to them, and would not permit the justice to testify to what was said to him, nor what he said to appellant. However,' he permitted the state to prove that they had gone to Montgomery, and had purchased a box of shotgun shells loaded with buckshot, and carried them home with them. If appellant had no explanation of why he purchased these shells, it would be a most material fact to show murder upon express malice — that after the difficulty they had gone direct to the town of Montgomery, purchased the buckshot shells, and returned home, the killing taking place early next morning. Had appellant been permitted to do so, he would have testified that he and his brother went to Montgomery to have deceased put under a peace bond, and applied to the justice of the peace; that the justice declined to do so, when they purchased the shells to use in defense of themselves if it became necessary. In the bill of exceptions it is shown the justice of the peace would have testified:

“That the defendant and the said George Sunday came to the witness on the night preceding the homicide, in the town of Montgomery, some 4% miles from the home of the defendant, and reported to the witness that they had been assaulted, abused, and threatened by George Ra-bun and the deceased, Jack Phillips, and that defendant and said George Sunday sought of the witness to have the deceased, Jack Phillips, put under a peace bond for their protection, and that the witness and Constable Frank Rabun, who was present at the time, told the defendant and George Sunday that it would make Jack Phillips worse to put him under a peace bond, and would increase the danger of them taking their lives, and the witness Davis, as justice of the peace, for that reason declined to institute proceedings to have the deceased put under a peace bond.”

As the state was using the fact that appellant and his brother had gone to Montgomery and purchased buckshot shells as a circumstance tending to show a predetermination to kill deceased, we think it was permissible for the appellant to show that his mission was a peaceable one, and that he applied to the officers of the law to have deceased put under a peace bond, and thus avoid any further difficulty, and it was only after the justice of the peace had refused to institute peace proceedings that he had purchased the shotgun shells. If his trip to Montgomery was one to have deceased put under a peace bond, and thus avoid all further difficulty between them, it was a commendable step to take, and this testimony should not have been excluded, and still permit it to be shown that he had gone to Montgomery and got shells that night, thus making his trip a hostile one, instead of one on a peaceful mission.

It being shown that George Sunday had been informed deceased had said if he did not move off of Dunks’ place he would kill him, and Mrs. Sunday testifying that while appellant and his brother, George, were in Montgomery that deceased had come to appellant’s house, and further testified that deceased had “asked us where George and Andrew Sunday were, that he came there to kill them, and was going to kill them at first sight, and had a good will to shoot us, and we slammed the door, and they went on, and in just a few minutes we heard four guns fire just about 100 yards from the house,” the defendant ought to have been permitted to show by Mr. Ward that but a few moments before the killing the Sundays had been to him and employed him to move George off the Dunks place. This would have a tendency to show that they were seeking to avoid further difficulty, and, as the state’s theory of the case was that they had gone to Field’s gin, hid themselves in some weeds, and shot deceased as he drove by, we think their acts and conduct, which tended to show they were seeking to avoid a difficulty, should have been admitted in evidence. While the state’s case would tend to show a waylaying, yet the evidence for the defendant is that, after making arrangements to have George’s things moved off the Dunks place, they were on their way to a relative’s, and as they were going by the gin deceased drove up, stopped his wagon when he saw appellant and his brother, and when he did this George Sunday remarked that he was not going to permit deceased to curse him and his family as he did the day before. Deceased dropped the wagon lines and reached for his hip pocket as if to draw a pistol, when both the Sundays fired. It is thus seen it was a waylaying from the state’s standpoint, self-defense from apparent danger from the defendant’s standpoint, and all evidence which would aid the jury in determining which was the correct theory on this contested issue should have been admitted.

The other bills present no error, and we do not deem it necessary to discuss but one of them. George Sunday had been tried, adjudged guilty of manslaughter, and the sentence suspended by the verdict of the jury. Appellant offered him as a witness, and says the court erred in excluding his testimony. Our Criminal Code provides that one charged jointly with the commission of an offense is not a competent witness, and certainly the conviction of his brother and suspension of the sentence did not render him a competent witness. He there stood charged with the offense, and it was not a case in which it is the final sentence that renders him incompetent as a witness, but the indictment that did so, and, this being still pending against his brother, the court correctly held he was not a competent witness.

The judgment is reversed, and the cause remanded.
      (@=^>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: HARPER, J. DAVIDSON, J. HARPER, J. DAVIDSON, J.

text:
    DILLARD v. STATE.
    (No. 3513.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    On Motion for Rehearing, May 19, 1915. Dissenting Opinion, June 5, 1915.)
    1. Forgery <@=>7 — Conveyances—Estoppel.
    An affidavit reciting that the deponent had conveyed land by quitclaim deed will estop him from asserting title; hence the forgery of such an affidavit falls within the act declaring that every person who forges or falsely makes any paper affecting the title to land shall be deemed guilty of forgery.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 2, 3, 8-15; Dec. Dig. <@=>7.]
    2. Forgery <@=>29 — Indictment — Sufficiency.
    Where an indictment charging forgery of an affidavit affecting title to land set forth the affidavit, which showed wherein it affected title, explanatory averments are unnecessary.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dee. Dig. <@=>29.]
    3. Estokpel <@=>53 — Equitable Estoppel.
    Where the owner of real estate put in circulation a letter reciting a conveyance of the land, intending that a purchaser from a third person should rely thereon, he is estopped to assert his title.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 126, 127; Dec. Dig. <§=>53.]
    4. Forgery <@=>32 — Indictment — Sufficiency-Surplusage.
    Where one is a principal by reason of the part performed by him in the commission of an offense, he may be convicted under an indictment charging him with actual commission; hence an averment that accused passed a forged instrument through and by an agent is sur-plusage, and the indictment is not defective because not alleging that the agent was innocent.
    [Ed. Note. — For' other cases, see Forgery, Cent. Dig. § 64; Dec. Dig. <@=>32.]
    5. Forgery <@=>21 — Principals—Who Are.
    Where several combine to forge and pass a forged instrument, accused doing one act, and his confederates others, all are principals, and may be prosecuted as such.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 57; Dec. Dig. <@=>21J
    6. Forgery <@=>44 — Prosecution—Evidence —Sufficiency.
    In a prosecution for forgery, evidence held to warrant a conviction of accused as a principal.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 117-121; Dec. Dig. <@=>44J
    7. Criminal Law <@=>510 — Evidence—Testimony of Co-conspirators.
    One of several co-conspirators cannot be convicted on the testimony of his confederates, unless the jury believe their evidence, and there is other testimony tending to connect him with the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. <@=> 510.]
    On Motion for Rehearing.
    8. Forgery <@=>48 — Prosecution — Submission.
    In a prosecution for forging and passing a forged instrument affecting title to land, the case must be submitted under Pen. Code 1911, arts. 947, 949, defining that particular offense, and no.t the general statute.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 124-128; Dec. Dig. <@=>48.]
    9. Criminal Law <@=>1133 — Appeal — Rehearing — Fundamental Error.
    As the courts have no right to assess punishment not provided for by law, the error in submitting a case under statutes not applicable to the offense is fundamental, and may be first raised on motion for rehearing on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <@=>1133.]
    10. Criminal Law <@=>1056 — Appeal—Presentation of Grounds of Review in Court Below.
    Under Code Or. Proe. art. 743, an objection that the charge did not submit an issue cannot be raised for the first time on appeal, but must be presented by exception below.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <@=> 1056.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.

      J. J. Dillard was convicted of passing a forged instrument, and lie appeals.
    Reversed and remanded.
    Cunningham & Oliver and Dan Puckett, all of Lubbock, for appellant. C. C. McDonald, Asst. Atty. Gen., for the .State.
   HARPER, J.

Appellant was convicted of the offense of passing a forged instrument, and his punishment assessed at two years’ confinement in the state penitentiary.

The facts in this case would show that appellant traded some property in Oklahoma to R. H. Thompson, and in exchange therefor Thompson gave him a deed to some property in Oklahoma City, also a quitclaim deed to 640 acres of land in Swisher county, Tex., described in the record as section No. 3 in block No. B — 6, certificate No. 48. Mr. Thompson testified that he “would not say that he owned the Swisher county section when he sold it to Dillard, but he had a claim to it.” It further appears by the record that appellant had Thompson make the deed to the Swisher county section to his brother, R. J. Dillard, on April 23, 1913; that subsequent thereto appellant, being indebted to A. L. Neal, had his brother deed the property to Neal as security for the money he was due Neal, and the title was in Neal at the time of the transactions hereinafter recited. The evidence would show that appellant took up the question of sale of the land with Jas. R. De Lay, Jasper N. Haney, and Fred C. Pearce. The correspondence with De Lay was carried on in appellant’s own name, while the correspondence with Haney was carried on in the name of H. W. Stone, and the evidence would authorize the jury to find that the letters signed “H. W. Stone” were, in fact, written by appellant. One witness testifies he met appellant in Amarillo, where he had registered at a hotel in the name of Stone, and he there had a talk with him about this transaction. Thompson identifies the signature to the Stone letters as being in the handwriting of appellant. The correspondence shows that communications would be mailed to Dillard (appellant) by De Lay, and Stone would write Haney that he had received the communication from De Lay. It appears that appellant finally priced the land to De Lay at $8 per acre; that De Lay contracted to sell the land at $10 per acre, and to make the $2 an acre he was having the deed from Neal made to him (De-Lay). In passing on the title it appears there was an outstanding title of record in one Joshua H. Truet to the section of land in question; the deed from Arnold and Barrett to Truet being recorded in volume 5, page 435, of the Deed Records of Swisher county. The person to whom De Lay was.selling the land demanded a quitclaim deed from Joshua I-I. Truet before he would accept the title. Appellant, by letter of date October 13, 1913, writes De Lay;

“Now, as to quitclaim deed, that has been tried and can’t be had at any price, for the party is 85 years old and contends for all the land. Nothing doing along this line, unless quitclaim can be had from another Joshua H. Truitt, Sr., as per similar case to section down near Hale Center several years ago, which you probably recall. There are a number of Truitts in the world, and they will make quitclaim deeds for nominal sums. Do you get the idea? We don’t want to be driven to this extremity if there is any other earthly show to close the deal.”

Later appellant writes to De Lay a letter dated November 6, 1913:

“If nothing else will carry the deal through and. you will advance me $50 to make a trip to East Texas, I will get it. Neal refuses to bear the expense of the quitclaim. Hence it compels me to bear the expense of the quitclaim, and the expense of securing it, which I will.”

Shortly after this last letter a quitclaim deed was furnished to the section of land in question, appearing to be from Joshua H. Truit, Sr., to R. H. Thompson, reciting a consideration of $2,000 cash. This deed purports to be acknowledged by Mr. Truit before W. A. McKenzie, notary public, Shelby county, Tex. Mr. McKenzie swears that Mr. Truitt acknowledged no such deed before him. G. H. Stephens, who lives in Shelby county, Tex., swears that he iá a son-in-law of Mr. Truitt; that Mr. Truitt is aged and very feeble, and has not been away from his home for more than two years; that he transacts no business, but he (Stephens) transacts all his business for him; that he is familiar with Mr. Truitt’s signature; and that he did not sign the deed to Thompson. Thompson swears that he obtained no such deed from Truitt, and had not paid him $2,000, nor any other sum of money. However, the quitclaim deed, purporting to be executed by Truit to Thompson, was placed of record in Swisher county in Book 29, page 344, but the purchaser to whom De Lay had contracted to sell the land refused still to accept the title, giving as a reason that the deed from Barrett and Arnold to the section in question was made to Joshua H. Truet, while the purported quitclaim to Thompson was signed Joshua H. Truit, Sr., and demanded proof of the identity of the person signing the deed to Thompson as being the same person to whom Barrett and Arnold had sold the land in 1875 and 1879. The man who was writing Jasper N. Haney under the name of “H. W. Stone” wrote Haney to have De Lay have the attorney of the proposed purchaser write such an instrument as he would accept and send it. De Lay says that he had the attorney prepare the affidavit in duplicate, and he sent one of them to appellant at Wichita Falls, and the other to W. A. McKenzie. McKenzie says he received the affidavit from De Lay and returned it to him, .indorsing thereon that Truitt was dead; and further testified he had never taken an affidavit or acknowledgment from Mr. Truitt in his life. “H. W. Stone” writes Jasper-N. Haney that he has received the affidavit from De Lay, which De Lay says he sent to Dillard (appellant), and then in a day or two writes to Haney that the affidavit has been forwarded to him in the mail, and to get it and close the matter. ¡Haney says he got the affidavit on which the forgery is based out of the mail; that it was presented to De Lay and the attorneys passing on the title. On the strength of this affidavit the title was passed, and De Lay paid him (Haney) $3,000, and executed two notes in payment for the section of land. Of this amount Haney kept $550; left $150 with De Lay to be paid to Pearce. Haney says the $550 he got was for information he gave and some conversations he had; that it was not for fees; that he held it for future adjustment. He says he sent the remainder to Neal. Neal says that Dillard brought him the cheek and notes and delivered them to him. It is thus seen that appellant, out of the proceeds received from the land, paid his debt to Neal. Haney got $550, Pearce $150, and De Lay was to get $2 per acre, or $1,-280, out of the man for whom he was buying and to whom he was to sell the land. In our opinion, the evidence in the record would clearly authorize the jury to find that a conspiracy existed between appellant, Haney, and De Lay to pass this title, and they and each of them knew that the man who claimed the land, Joshua H. Truitt, of Shelby county, had not signed the quitclaim deed, and would not do so; that he had not and would not sign the affidavit; that, in fact, Truitt did not do so is shown by the testimony of G. H. Stephens and W. A. McKenzie, and that the name of Joshua H. Truitt was signed to the qiutclaim deed and to the affidavit by some person other than Mr. Truitt; that Mr. Truitt’s acknowledgment to the deed and oath to the affidavit was not taken by W. A. McKenzie, notary public, but that McKenzie’s name as notary public was signed to these instruments by some other person; that this was to be done and was done with the knowledge of appellant, Haney, and De Lay; and that they and each of them were aware of the fact that Mr. Truitt, of Shelby county, the man who claimed the land, had not, in fact, signed the papers when they presented the affidavit to the attorney who was passing on the title for the purchaser, and with this knowledge appellant either mailed to Haney, or had mailed to him, the forged affidavit, with instructions to give it to De Lay, that he might present it to the attorney and get the title passed. Haney, in accordance with the instructions, did give it to De Lay, and De Lay, in Haney’s presence, did present it to the attorney, who, believing it to be a genuine instrument and the act of Mr. Truitt, passed the title.

Appellant’s first insistence is that the affidavit is not such an instrument upon which a charge of forgery can be based. The second count in the indictment reads:

“And the grand jurors aforesaid, upon their oaths, in said court do further present, that J. J. Dillard, on or about the 5th day of January, A. D. 1914, in said county and state, did then and there unlawfully and willfully, knowingly and fraudulently, pass as true to Jas. R. De Lay, by and through his (J. J. Dillard’s) agent, Jasper N. Haney, a forged instrument in writing to the tenor following:
“ ‘The State of Texas, County of Shelby:
“ ‘Before me the undersigned authority on this day personally appeared Joshua H. Truitt, Sr., who, being by me first duly sworn on his oath, says: That he is the identical Joshua H. Truitt to whom S. J. Arnold, for himself and as the attorney in fact for A. M. Barrett, on May 19, 1875, conveyed land certificate No. 48, issued to said Arnold and Barrett May 1, 1875, for work on channel of Angelina river, which conveyance by inadvei'tence is made to Joshua H. Truet and is recorded in volume 5, page 435, of Swisher County Deed Records; that he is the identical person whom L. T. Barrett and wife, A. M. Barrett, by special warranty deed dated May 27, 1879, and recorded in volume 5, page 433, of Swisher County Deed Records, conveyed all their interest in and to the lands covered by the location of said certificate No. 48, meaning all their interest in and to section No. 3 in block No. B — 6, Swisher county, Tex., so acquired as above set out, was the separate property of affi-ant, paid for out of his separate estate, and was never used or occupied as a homestead, and that affiant continued to hold, use and manage said above-described section of land till January 15, 1913, when by quitclaim deed of that date recorded in Book No. 29, page No. 344, Swisher County Deed Records, title was conveyed to R. H. Thompson for a cash consideration of two thousand ($2,000.00) dollars, and executed said deed as the act and deed of said Joshua II. Truitt, when he signed said instrument as J. II. Truit, Sr., that the facts above set forth are each and every one, within the knowledge of affi-ant, true and correct. Joshua H. Truitt, Sr.
“ ‘Subscribed and sworn to before me, this 30th day of December, A. D. 1913.
“‘[Seal] W. A. McKenzie,
“ ‘Notary Public, Shelby county, Texas.’
—which said instrument in writing the said J. J. Dillard then and there knew to be forged, and did then and there pass the same as true, with the intent to injure and defraud, against the peace and dignity of the state.”

Our statute defining forgery as applicable to this character of offense reads:

“Every person who falsely makes, forges or causes to be falsely made or forged, or in any way aids, assists, advises or encourages the false making or forging of any paper or any evidence of any right, title or claim of any character, or any instrument in writing, document, paper, memorandum in relation to or affecting lands or any interest in lands in this state, with intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist anyone else in setting up a claim or title to lands or interest in lands, shall be deemed guilty of forgery.”

Appellant insists that this instrument would not convey land; that it is not such an instrument as is authorized to be placed of record, etc. While this is true, yet, if Joshua H. Truitt should bring suit for the section of land in question, alleging that the quitclaim deed was a forgery, and take the stand and admit he had made the affidavit in question and put it in circulation, he would be estop-ped in law, and could not recover the land from one who had purchased the land relying on the truthfulness of the affidavit. If true, he would swear in the affidavit:

“That by quitclaim deed of date January 15, 1913, title was conveyed by him to R. H. Thompson for the consideration of $2,000.”

This would be such a “memorandum” in writing which, if true, would forever bar Mr. Truitt from recovering the land, and is such an instrument that a charge of forgery can be based thereon. In the case of Lassiter v. State, 35 Tex. Cr. R. 543, 34 S. W. 752, it is held :

“It is not pretended in this case that the deed or instrument in writing could have been registered. The indictment, as stated, does not purport to set out an acknowledgment. The allegation is that appellant ‘made a certain false instrument in writing, which false and forged instrument did then and there relate to and affect an interest in lands,’ etc. It is not even called a deed, yet in form it was a deed, and on delivery it was competent to convey thereby the land described therein, in the absence of two subscribing witnesses, and in the absence of a certificate of acknowledgment. In our opinion, in such condition, it would afford the basis of suit for specific performance. It was such an instrument in writing as would afford the basis of a valid contract upon which a conveyance could be enforced. Under the language of the act under which the indictment was drawn (although not entitled to go to record), it was such a conveyance or title paper as constituted it the subject of forgery. As between the parties, it conveyed the title; and, although it was in an inchoate state as to registration, this would make no difference. It was as much the subject of forgery as a bail bond which has been forged as to the sureties, for the appearance of a party to answer a criminal charge before its approval by the sheriff, or before its forfeiture in court; the rule being that the instrument falsely made with intent to defraud is a forgery, although, if it had. been genuine, other steps must have been taken before the instrument would be perfected. These steps are not taken. See Com. v. Costello, 120 Mass. 358, approved in Costley v. State, 14 Tex. App. 156. And it was as much the subject of forgery as a deed prepared for the transfer of land, which left the name of the transferee in blank, to be afterwards filled out. See Phillips v. State, 6 Tex. App. 364. From what we have said it follows that the instrument set out in the indictment was such a deed or instrument in writing as was the subject of forgery.”

See, also, Phillips v. State, 6 Tex. App. 364; Heard v. State, 9 Tex. App. 1; Rogers v. State, 10 Tex. App. 655, 38 Am. Rep. 654.

Neither was it necessary to explain the instrument by averments other than there is contained in the instrument, it containing all averments necessary to explain it, and nothing could be added thereto by extraneous averments. It sets forth that deeds had been made by Barrett and Arnold to Joshua J. Truet to section No. 3 in block No. B—6, certificate No. 48, in Swisher county, Tex., in 1875 and 1879; that affiant, signing his name as Joshua H. Truit, Sr., had conveyed the land in 1913 to R. H. Thompson for the consideration named; that affiant is the identical person to whom Barrett and Arnold conveyed the land, and is the identical person who had conveyed the land to Thompson. It is such an instrument as is in common use in this, day and time in making proof that seemingly apparent defects in the chain of title to land are, in fact, not defects, but that the title is regular in every respect, and, as hereinbefore stated, if it was a genuine instrument, and had been put in circulation by the maker, it would effectually bar his recovery of the land from one who had purchased it relying on the truthfulness of the statement contained in the affidavit.

It is contended that the affidavit would not be more effective than a letter written. To concede that, yet a letter written containing such a statement of facts, if it had been written by Mr. Truitt, and put in circulation by him, if the purchaser relied on it in making the purchase, would bar Mr. Truitt from a recovery of the land. In the case of Cagle v. State, 39 Tex. Cr. R. 109, 44 S. W. 1097, the court, after discussing the question at length, states the rule succinctly:

“It is a general rule that any writing of such form as to be the means of defrauding another may be the subject of forgery. * * * If the instrument on its face is such that it imports an obligation in regard to' * * * property, and will afford the basis of a civil action without resorting to extrinsic testimony,” no extraneous averments are necessary.

This instrument on its face would work an estoppel to Truitt’s claim to the land, when shown, as is alleged, that it was passed or put in circulation. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1126.

The only other ground upon which it is sought to quash the indictment is that, as the indictment charges that appellant passed the instrument by and through his (appellant’s) agent, Jasper N. Haney, it should have contained an allegation that Haney did not know that the instrument was forged when he passed it; was, in fact, an innocent party to' the transaction. Our statute provides that, if one does an act by an agent, who does not know the act is illegal, he is the principal in the commission of the offense, and, if we treat as surplusage the words “by and through his (J. J. Dillard’s) agent, Jasper N. Haney,” and strike them from the indictment, an offense against the law would be fully set forth in the indictment. In Branch’s Crim. Law, § 905, the rule is correctly stated to he:

• “If not descriptive of that which is legally essential to the validity of the indictment, unnecessary words or allegations may be rejected as surplusage”—citing Rawls v. State, 48 Tex. Cr. R. 622, 89 S. W. 1071; Bolton v. State, 41 Tex. Cr. R. 642, 57 S. W. 813; Mayo v. State, 7 Tex. App. 342; Warren v. State, 17 Tex. App. 209; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.

And it is the rule that it is not necessary to allege the facts relied upon to show the person on trial to be a principal, although the offense may not have been committed by him. If he is a principal by reason of the part performed by him in the commission of the offense, he may be convicted under an indictment charging him directly with its actual commission. Williams v. State, 42 Tex. 392; Gladden v. State, 2 Tex. App. 508; Davis v. State, 3 Tex. App. 91; Tuller v. State, 8 Tex. App. 501; Mills v. State, 13 Tex. App. 487; Red v. State, 39 Tex. Cr. R. 667, 47 S. W. 1003, 73 Am. St. Rep. 965. Strike from tile indictment the words “by and through his (J. J. Dillard’s) agent, 'Jasper N. Haney,” and 'the indictment charges appellant with the commission of the offense alleged, and, if the facts do not constitute him a principal in the commission of the offense, of course, the conviction would not be sustained. If the facts do constitute him a principal, the words quoted were wholly unnecessary, and may and should he treated as surplusage. We are therefore of the opinion the court did not err in refusing to quash the indictment.

The court in the indictment charging appellant with forging the instrument set forth all the elements of the offense; hut, as appellant was not convicted under that count, we deem it unnecessary to comment further thereon, or the charge submitting that issue to the jury. The second count charged appellant with passing the forged instrument, and this is the count under which he was convicted, and which has heretofore been set forth herein, submitting to the jury the question of whether or not appellant was guilty of passing the forged instrument, to which appellant objects in the following language:

“Defendant objects to said charge for the reason that it is not the law of this state, and not applicable to the facts in this case, in this: That it does not require the jury to find that the defendant was present when his said agent passed said instrument, and does not require the jury to find that the said Jasper N. Haney was the innocent agent of the defendant, without such knowledge on his part as would make him a principal in the crime and the defendant an accomplice, and, the defendant suggests to the court, is not authorized by the evidence, for the reason that there is no evidence showing that the said Haney was the innocent agent of the defendant.”

This is all the complaints of the charge in the record, and we frankly state that, if all the evidence the state had to make appellant a principal in the commission of the offense was that Haney was an innocent agent in passing the forged instrument, the judgment would not be sustained, for no one reading this record would or could say that the record conclusively showed that Haney had no knowledge that the instrument was a forged instrument at the time he delivered it to De Lay to pass the title to the land. If Haney was the mere agent of appellant, and had no knowledge that the instrument was forged when passed, he (Haney) would be guilty of no offense, and appellant would be the principal in the commission of the offense. And it is true this record presents no such case, and, if the sustaining of the conviction relied on that state of facts, it could not and should not stand; but it depends upon no. such state of case. Mr. Haney testified he held $550 of the money received, “not as fees,” but “for some information he gave and some conversations that occurred in the office.” The record would further authorize the jury to find that appellant in writing letters to Haney signed the name of “H. W. Stone,” and the contents of such letters received by Haney would show that he (Haney) was fully cognizant of all the proceedings, and that Haney was a principal in the commission of the offense. The record would also authorize a jury to find that De Lay also knew of the fraudulent undertaking. Appellant wrote him:

“That the quitclaim deed could not be had at any price, for the party is 85 years old, and contends for all the land. Nothing doing along this line unless a quitclaim deed can be had from another Joshua H. Truitt, Sr., as per similar case to section down near Hale Center, which you probably recall. There are a number of Truitts in the world and they will make quitclaim deeds for nominal sums. Do you get the idea?”

A quitclaim deed was procured, which the real Joshua H. Truitt did not sign, and was placed of record. But on account of the spelling of the name “Truet” in the quitclaim deed the attorney passing on the title for the prospective purchaser demanded proof of the identity of the person making the quitclaim deed as the same person to whom the land had been conveyed in 1875 and 1879. The letters of appellant to De Lay and Haney show they were fully aware of the steps being taken. In fact, the testimony of Mr. McKenzié, the notary public who was represented as having taken the acknowledgment and affidavit, shows that De Lay knew that Truitt had not, in fact, signed the affidavit, for he says when he received a copy of the affidavit he indorsed on it that Truitt was dead, and returned it to De Lay unsigned and unsworn to; yet, when Haney brings him an affidavit purporting to have been made before this same McKenzie, he and Haney take the affidavit to the lawyer passing on the title, and by the affidavit get him to pass the title. The whole record teems with evidence that would justify a finding that a conspiracy existed to which appellant, Haney, and De Lay were parties to get this title passed by reason of these forged instruments. And the question arises: If appellant was in a conspiracy with Haney and De Lay, he performing the part of securing the forged instruments, and Haney and De Lay securing the passing of them, would this, in law, constitute him a principal in the commission of the offense, or an accomplice to the commission of the offense? If it constituted him an accomplice, then he could not be convicted under this indictment. If his acts constituted him a principal in the acts of Haney and De Lay in the passing of the forged instruments, the conviction should be sustained. To this question we have given much thought. That able law writer, Mr. Wharton, says:

“If part of a crime be committed in one place and part in another, each person concerned in-the commission of either part is liable as a principal. Hence, if several combine to forge a document, and each executes by himself a dis' tinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals.” Wharton’s Crim. Law (11th Ed.) § 255.

In this case it is made plainly manifest that appellant’s part was to procure the forged instruments, and they were procured by him or through his instrumentality, that it was the part of Haney to act as his attorney, and insist that the papers procured perfected the title, and deliver it, in .connection with De Lay, to the attorney of the prospective purchaser, and each, in fact, did perform his part in this transaction, and, under the law as announced by Mr. Wharton, appellant was properly prosecuted as a principal, and not as an accomplice. But it may be insisted that Mr. Wharton' announces the common-law rule, while in this state the statute defines .who are principals and who are accomplices, and this is true, and these statutes have been often before this court for construction, and a most exhaustive discussion of the question is found in the case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, in an opinion by Presiding Judge White. In that ease the facts tended to show that the appellant, M. M. Smith, who lived in Parker county, conspired with Bud Taylor and others to steal some cattle then situate in Erath county; that they procured two brothers of the appellant, Dave and Jim Smith, and Tom and Frank Saunders to go to Erath county to get the cattle and bring them to M. M. Smith in Parker county, and the four did do so. All six were jointly indicted charged with theft of the cattle, and in the case referred to M. M. Smith was alone on trial, and he was shown not to have gone to Erath county, not to have been in Erath county when the cattle were taken off the range and driven to Parker county, but he was seen in possession of the cattle in Parker county; the evidence showing that he and Bud Taylor claimed the cattle as their own, and they had procured the other four men to go to Erath county, round the cattle up, and bring them to Parker county. The cattle were, in fact, the property of E. M. áhd W. A. Trammell. Although M. M. Smith was not, in fact, in Erath county when the cattle were stolen, yet he was held to be a principal in the transaction, and liable to prosecution as such in Erath county. The court, after stating the facts, says:

“But the question is: Can a party under any circumstances be a principal offender under our statutes when he is not present at the time and place, and participating in the commission of the crime, where the party actually committing it is not an innocent, but a guilty, agent, by virtue of his own guilty knowledge and intent? Mr. Bishop, as a rule, says not, but holds that the relation of the instigator becomes changed from that of a principal to that of an accessory before the fact (or an accomplice), on account of the changed relationship of his agents. He says: ‘But, if the agent employed incurs guilt, then the employer is simply an accessory before the fact.’ Id. Only two authorities are cited iu support of the text, and they have not been accessible. If correct in principle, the doctrine cannot be of universal application under our Code, where_ all persons are principals who are guilty of acting together in the commission of an offense. Parties may act together, whether they are bodily present together or not.
“We believe that the distinction drawn by us between principal offenders and accomplices as known to our Code has been as clearly and accurately stated as we are able to present it in the cases of Cook v. State, 14 Tex. App. 96, and Bean v. State, 17 Tex. App. 61.
“In the former case it is said: ‘We are of opinion that the proper distinction between these two characters of offenders is this: The acts constituting an accomplice are auxiliary only, all of which may be and are performed by him anterior and as inducements to the crime about to be committed; whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime, but, when it is actually committed, is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not. Where the offense is committed by the perpetration of different parts which constitute one entire whole, it is not necessary that the offenders should be, in fact, together at the perpetration of the offense, to render them liable as principals. In other words, an accomplice, under our statute, is one who has completed his offense before the crime is actually committed, and whose liability attaches after its commission by virtue of his previous acts in bringing it about through the agency or in connection with third parties. The principal offender acts his part individually in furtherance of and during the consummation of the crime.’
_ “In Bean v. State, it is said: ‘The dividing line between the two is the commencement of the commission of the principal offense. If the parties acted together in the commission of the offense, they are principals. If they agreed to commit the offense together, but did not act together in its commission, the one who actually committed it is the principal, while the other, who is not present at the commission, and who was not in any way aiding in its commission, as by keeping watch or by securing the safety or concealment of the principal, would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of, and disconnected with, the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense, such a party is not a principal offender, but is an accomplice or an accessory according to the facts.’
“In Welsh’s Case, 3 Tex. App. 413, where the employer ordered his servants to take all the cattle they could find, and that in the meantime he would go ahead and make arrangements to ship or sell them, he was held to be a principal offender, because he was engaged at the time of the theft in performing his part in the consummation of the conspiracy to steal and dispose of them.
“In Scales’ Case, 7 Tex. App. 361, part of the conspirators were to steal the horses in question, whilst the rest were to get up provisions and an outfit to enable them all jointly to take the horses to Ft. Elliott and sell them. See statement in McKeen v. State, 7 Tex. App. 631. They were all held principal offenders because doing their separate parts and acting together in consummating the conspiracy.
“In McCampbell v. State, 9 Tex. App. 124 [35 Am. Rep. 726], it is said: ‘If the facts should show an actual partieipancy by appellant in the original fraudulent taking, a conviction may be sustained for the offense charged, although the appellant may not have been personally present at such taking,’
“In Cohea v. State, 9 Tex. App. 173, it is said: ‘He need not be actually present at the taking, if the act was committed in pursuance of a common intent and a previously formed design where the mind united and concurred with that of the actual taker.’
“As before stated, evidence in proof of a conspiracy to commit crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants by their acts pursued the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object (Slough’s Case [C. C.] 5 Fed. 680), and under our statute such acting together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. State, 4 Tex. App. 492; Heard v. State, 9 Tex. App. 1; Wright v. State, 18 Tex. App. 358), and they are all principals and acting together as long as any portion or object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Hence, ‘where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to the theft, what one did between the stealing and the dividing was deemed good evidence against both.’ 2 Bish. Crim. Proc., 230, citing Scott v. State, 30 Ala. 503. This doctrine is expressly recognized and adopted by us in O’Neal v. State, 14 Tex. App. 582, and the same rule is announced in Allen v. State, 12 Lea (Tenn.) 424.
“Now, in applying the law as above stated to the case in hand, if Jim and Dave Smith were the innocent agents of M. M. Smith, then M. M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M. M. Smith being the sale after it was so taken, then all were principal offenders.”

If the rule of law be there correctly stated, then the appellant would be a principal in the commission of the offense, even though Mr. Haney was the guilty agent of appellant, and knew all the facts, as the evidence would indicate that he did, and if the opinion in the Smith Case is a correct exposition of the law in this state, then the criticisms of the court’s charge are without merit.

The Smith Case, supra, has been frequently referred to by this court and approved. The case of Neiderluck v. State, 23 Tex. App. 40, 3 S. W. 74, was a case where a servant entered into a conspiracy with others to open the door of a residence and to permit them to enter to commit the crime of theft. As there was a conspiracy shown, the persons entering the house were held guilty of burglary, and that they were all principals in the commission of the offense, the court saying:

“We have seen, however, that Levy was not induced to open the door by any trick or fraudulent device. He was not the dupe, but the willing assistant of his co-conspirators, fully cognizant of their felonious intent, if not the master and controlling spirit. There is no pretense either that Wing was duped or misled into opening the door of his house to the conspirators. The record leaves it beyond question that neither Wing nor Levy was induced by fraud to permit the entrance. Levy, at the time of opening the door, shared every intent and purpose of his companions in crime. * * *
“We have been considering this question upon the assumption that there was not such a-breaking as would justify a conviction of Levy; he being a domestic servant. If the domestic servant is acting alone, there must be an actual breaking to render it burglarious. But does it follow that there must be such breaking when the servant is acting with others who are not servants? We have given this subject a most careful consideration, and are led to conclude that such breaking is not necessary. Mr. Russell on this subject says: ‘The breaking may also be by conspiracy. Thus, when a servant conspired with a thief to let him into his master’s house to commit a robbery, and, in consequence of such agreement, opened the door or window in the nighttime and let him in, this, according to the better opinion, was considered to be burglary in both the thief and the servant. * * * Two men were indicted for burglary, and upon the evidence it appeared that one of them was a servant in the house where the offense was committed; that in the nighttime he opened the street door, let in the other prisoner, and showed him the sideboard, from whence the other prisoner took the plate; that he then opened the door and let the prisoner out, but did not go with him, but went to bed. And, upon these facts being found specially, all of the judges were of opinion that both the prisoners were guilty of burglary, and they were accordingly executed.’ 2 Russell, pp. 9, 10.
“Upon a similar state of facts, Lord Hale said : ‘It seems to be burglary in both, for, if it be burglary in the thief, it must needs be so in the servant, because he is present and aiding the thief to commit a burglary.’ ”

In the case of Watson v. State, 21 Tex. App. 598, 1 S. W. 451, 17 S. W. 550, it was held that Watson was a principal by reason of the fact that he had entered into a conspiracy with two others to steal some hogs, and, while not present at the commission of the offense, yet he had agreed to and did prepare the pen in which the stolen hogs were to be, and in fact were, placed. The rule announced in these cases is approved in Montgomery v. State, 23 S. W. 693; Blain v. State, 24 Tex. App. 636, 7 S. W. 239. And in the case of Phillips v. State, 26 Tex. App. 247, 9 S. W. 560, 8 Am. St. Rep. 471, it is tersely stated:

“It is also a familiar general rule that, when several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance or in prosecution of the common design for which they combine.”

The case of Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564, is a case wherein Mason was held to be a principal in the passage of a forged check, although not personally present when the check was passed, the court saying:

“Again, it is well, settled that where it'is proved that the persons charged by their act pursue the same object or purpose, one performing one part and another some other part of the same, so as to- complete it with a view to the attain- - ment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object; and, under our statute, such acting together make all principal offenders, whether bodily present or not at the place of the offense. And they are all principal offenders when acting and together, as long as any portion of the object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished.”

The question of whether the evidence for the state would constitute appellant a principal or an accomplice is one that has given the writer no little trouble; yet, if we are to follow the rule of law announced by those eminent men who have preceded us, there can be no question that the evidence in this case would constitute the appellant a principal, and not an accomplice, for the facts in this case would justify a finding that a conspiracy existed between appellant and others to get this title passed by the attorney of the purchaser, and this affidavit was procured by appellant and mailed to Haney, who presented the affidavit and got the title passed, and the money was received by reason of the fact that this affidavit had been forged, presented as true, and that appellant was performing a part in the transaction from the beginning to the end. In fact, he was the man relied on to get the forged paper, and he writes:

“That it has been mailed, to hurry the transaction through; get back the original affidavit and return to me.”

The only other question raised is, it is claimed the evidence is insufficient to sustain the conviction. Taking the view of it we do, Haney and De Lay, as witnesses, would alsb be principals in the transaction, and the court should have so instructed the jury, or at least submitted that issue to the jury, and instructed that, if they so found, they could not convict upon their testimony, unless they believed it to be true, and that their testimony connected defendant with the commission of the offense; and, further, they would not be authorized to convict appellant even if they so found, unless there was other testimony in the case tending to connect the defendant with the commission of the offense. The court did not so instruct the jury, but there is no complaint of the charge in this respect. However, in passing on the sufficiency of the testimony, we have viewed it from this standpoint, and are of the opinion that the other evidence not only corroborates the testimony of Haney and De Lay, but, if their evidence was wholly excluded from the record, a jury would be authorized to find appellant guilty of the offense charged, taking into consideration the letters and telegrams of appellant found in the record, which are proven up independent of the testimony of Haney and De Lay.

The judgment is affirmed.

DAVIDSON, J.

From my understanding of this record and the law, there are such grave errors this judgment ought to be reversed. If the affirmance is adhered to, I will write briefly.

On Motion for Rehearing.

HARPER, J.

At a former day of this term this case was affirmed. In the court below there was but three grounds assigned in the motion for new trial why the judgment should be set aside: (1) That the indictment charged no offense under the laws of this state, in that the instrument was not such an instrument upon which forgery could be based, and, if such an instrument, the indictment did not contain the necessary explanatory averments; (2) that the court’s charge was erroneous, in that it permitted the jury to convict defendant of passing a forged instrument if Jasper N. Haney was his agent, without requiring the jury to find that said Haney was an innocent agent of appellant; (3) because the evidence was insufficient to support the verdict, in this, that the evidence failed to show that Haney and appellant were connected in the transaction, and, if acting for appellant, that Haney was not an innocent agent. These and these only were the questions raised in the motion for new trial in the court below, and in the bills of exception filed. These were the only questions presented in the briefs filed on the original hearing and in the able argument made on the submission of the ease. Consequently, they were the only questions considered and passed on in the original opinion, and were the only questions we had in mind at the time of writing the opinion. Had the questions now sought to be raised for the first time in the motion for rehearing been raised in the motion for a new trial in the court below, or raised and discussed at the time this case was originally submitted to this court, so that we could have had them in mind, some language is used in the original opinion, in referring to De Day’s connection with the transaction, that perhaps should not or would not have been used. But no such questions being presented, and not having them in mind, if in the original opinion we said or used any language which would be construed to mean that the record demonstrated that De Lay was a principal, we should not have used such language; for what we intended to say and hold was that the testimony raised the issue with that force and cogency that the jury would be authorized to so find if the question had been submitted to them. But neither in the indictment, nor in the charge, is the question of De Lay’s connection with the transaction charged or submitted to the jury. With these remarks to make it clear what we intended to say and hold in the original opinion, we will discuss the questions which are now raised for the first time in the motion for rehearing in this court, and which were not raised in the trial court, nor discussed in the briefs filed in this court.

As to the indictment, appellant now concedes that the indictment does charge forgery and passing a forged instrument as defined by articles 947 and 949 of the Penal Code, but he contends that the court in charge did not submit these provisions of the Code, but, instead of doing so, submitted forgery and passing a forged instrument as defined by articles 924 and 937. If this is true, this could not affect the validity of the indictment. Under article 924 forgery is defined as the making of a false instrument, purporting to be the act of another, which, if true, would have created, increased, diminished, or discharged or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever. This is the general statute defining forgery, but the making of forged instruments affecting land titles became so general at one time in this state the Legislature deemed the punishment affixed to ordinary forgery insufficient, and passed a special statute governing this matter, affixing a much heavier penalty, and so defining forgery as affecting lands as to include any character of instrument which would affect the title to land. The instrument upon which the forgery is based in this case is one which would, and shows on its face to be one which would, affect the title to land, and comes under articles 947 and 949 of the Code, and these are the offenses charged in the indictment, and, as held in the original opinion, the indictment does charge an offense under those provisions, which apparently is conceded by appellant in his motion for a rehearing; his insistence now being that the court did not submit to the jury the offenses charged in the indictment, but submitted forgery and passing a forged instrument as defined by articles 924 and 937, instead of. submitting these offenses as defined by articles 947 and 949. If the punishment prescribed was the same, we might deem it immaterial, but for passing an ordinary forged instrument the punishment is not less than two nor more than five years, while the punishment for passing a forged instrument affecting title to land is not less than five nor more than twenty years. In this case the punishment assessed was only two years, and not within the minimum and maximum terms for passing a forged instrument affecting land titles, and therefore appellant has been assessed a punishment not authorized under the indictment. Had our attention been called to the fact that the punishment authorized to be assessed by the jury, and which was assessed by it, was not within the period of time as fixed by the Legislature, the case would not have been affirmed, but at that time we were only discussing the questions raised in the court below as shown by the record.

As said before, this question was never raised until the motion for rehearing was filed in this court, but we deem it such an error as can be raised at any time, for the courts have no right to assess a punishment not provided by the laws of this state for the commission of any offense.

Another question raised in the motion for rehearing in this court, and not raised in the trial court, is that, as the indictment charged a passing on De Lay, and the evidence would show that De Lay was a principal in the commission of the offense, it could not have been passed on him as true, and therefore the evidence would not sustain the verdict. If the evidence conclusively showed that De Lay was a principal in the commission of the offense, this ground might be well taken, because one would not be guilty of passing a forged instrument if he passed it on a person who knew it was a forged instrument; they both understanding and agreeing that it was to be passed and used as true on a third person not named in the indictment. But the record in this case does not conclusively show that De Lay was a principal in the commission of the offense. It raises the issue that he might have been in the conspiracy that is shown to have existed between appellant and Haney to pass the forged instrument; yet the fact such an issue was raised by the evidence would not entitle appellant to a new trial on that ground. If appellant desired .to raise that issue, he should have done so in the trial court, and then it would have been proper for the court to have instructed the jury that, if from the evidence they found that De Lay had entered into a conspiracy with appellant and Haney to pass this instrument on the person purchasing from De Lay, or his attorney, and that at the time he received it from Haney he knew it was forged, appellant should b.e acquitted, but, if they found that at the tim'e De Lay received same from Haney he did not know it was forged, appellant would be guilty, if they found the instrument was forged, and that appellant and Haney had entered into a conspiracy to pass it on him, they knowing it was forged, or if they found that Haney or De Lay did not know it was forged when Haney delivered it to De Lay, appellant would be guilty. However, this question should have been raised in the trial court by an exception to the charge of the court, when presented to counsel, and, as they did not do so at that time, it could not be raised on'a motion for rehearing in this court since the amendment to article 743 of the Code of Criminal Procedure.

We have said this much in view of another trial, as it will be necessary to grant a rehearing and reverse and remand the cause because the punishment authorized by the court and assessed by the jury is not within the terms fixed as punishment by the Legislature for this character of offense. And, as the case will be reversed on this ground, we would suggest to the prosecuting attorney that he have returned a new indictment, in which it would be charged in one count a passing on De Lay, and in another count a passing on Mr. Mathis, the attorney for the prospective purchaser to whom De Lay was selling the land, so that the indictment would cover the case as made by the evidence. For, if the jury should find that De Lay entered into the conspiracy to pass the instrument at the time he received it, knowing it was forged, and with such knowledge passed it on the attorney passing on the title, appellant, under the evidence in this case, would be guilty as a principal in the passing of the instrument on the attorney; if De Lay was not in the conspiracy at the time he received it, appellant would be guilty as a principal with Haney in passing it on De Lay, under the evidence now before us.

The motion for rehearing is granted, and the cause is now reversed and remanded.

DAVIDSON, J.

(dissenting). I could not agree to the original opinion herein, but concur in the reversal on rehearing. Some of the latter opinion, however, I think is not correct. I do not purpose to write at any length.

1. I agree to the reversal on the ground stated, as to the error of the court in the charge submitting the punishment to the jury.

2. I cannot agree with the conclusion that the alleged forged false affidavit is the subject of forgery. It is, in my judgment, without legal efficacy. It could not afliect the title to the land mentioned, nor could it tend to make the forged quitclaim deed a genuine document, nor could the affidavit, as I understand the law, be used for any legal purpose.

3. The alleged false affidavit could not be passed on De Lay so as to deceive or defraud. The facts bearing on this phase of the cáse are sufficiently stated in the original opinion by Judge HARPER, without repetition on my part.

4. I express no opinion as to whether the suggested new indictment, if one should be found, should allege the passing of the affidavit on Mathis. Mathis was the attorney who investigated the title for Baker, to whom it was sought to sell the land. It seems that the only connection that Mathis had with the transaction was to investigate the title as attorney for Baker. What his conclusion was on that matter is not made, known, nor is it shown that the documents were ever passed from Mathis to Baker. They may have been given to De Lay. If the document was such a one as formed the predicate for forgery, as held by my Brethren, then it must be passed for the purpose of deceiving or defrauding some one. I express no opinion as to that matter now, because the facts are too indefinite and meager to form the basis of any definite conclusion on that question.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes