All the testimony as to the killings which, this theory the state introduced a large numwas admitted was clearly admissible.

This case should be affirmed. I dissent.

On Motion for Rehearing.

PER CURIAM. Rehearing denied.

MORROW, J. (concurring). The appellant was charged with forgery and passing a forged instrument. The count charging forgery was not submitted. The instrument involved was a check drawn by I. B. Padgett, county treasurer, on the Graham National Bank for the sum of $84.50, payable to J. T.

Lowe. It bore the indorsement of J. T. Lowe

ber of accounts, warrants, and checks, with which it showed, or undertook to show, ar pellant's connection. These transactions covered a period of about three years, part of them prior and part of them subsequent to that upon which the prosecution is founded. Their admissibility was challenged by the appellant. The general rule is, of course, that an accused is to be tried upon the merits of the charge against him, and the proof of other crimes is not received. Gilbraith v. State, 41 Tex. 567, and other cases cited in Branch's Ann. P. C. p. 99.

The question is, Does the proof made here come within one of the exceptions to this rule? That there are exceptions to the rule is as well established as the rule itself. Branch's Ann. P. C. p. 98, § 166, and cases cited. That cases of passing forged instruments, where there is an issue of guilty knowledge or intent, come within one of the exceptions has often been affirmed by this cis v. State, 7 Tex. App. 501; Heard v. State, court. Ham v. State, 4 Tex. App. 645; Fran9 Tex. App. 20, and other cases cited in Mr. Branch's Ann. P. C. p. 864, § 1412. Wharton in his work on Criminal Evidence, vol. 1, p. 135, § 35, states what we understand to be the correct rule, as follows:

and E. W. Fry, and was passed by E. W. Fry,
and the state's theory that J. T. Lowe's name
was forged, and that the appellant passed the
instrument knowing of the forgery, is sustain-
ed by the verdict of the jury. It appears that
the county, by authority of the commission-
ers' court, was engaged in certain improve
ments requiring the employment of labor and
teams, and that there was a custom, sanc-
tioned by the commissioners' court, under
which persons to whom the county was in-
debted collected their money by presenting an
account therefor to the appellant, who was
county judge; that upon his approval the
county clerk issued a warrant for the
amount, on the delivery of which to the coun-
ty treasurer a check was issued, payable to
the holder of the claim, and that the check in
question was the result of a transaction fol-
lowing this custom. The fact that the check
The fact that the check
came into the possession of and was passed
by appellant was established. J. T. Lowe tes-
tified, in substance, that he was not entitled
to either the warrant or the check, and that
he did not receive, indorse, or authorize the
indorsement of the check. There was testi-
mony pro and con touching the contention
that the name of J. T. Lowe was written on
the check by the appellant. The cross-
examination was conducted with a view of
suggesting that, although the J. T. Lowe, who
testified, had not indorsed the check, it was
issued to and indorsed by another of the
same name and innocently passed by appel-
lant. To discharge the burden that was upon
it to show that the check was forged, and
that appellant with knowledge of the forgery
passed it, and to meet the suggestion men-
tioned, the state introduced evidence of other
similar transactions, which theory was that
appellant conceived the purpose to fraudu-
lently withdraw from the treasury of the
county some of the money, and devised to § 309.
that end a system of making fictitious ac- p. 204.
counts, entering his approval thereon, order-
ing the county clerk to issue warrants there-
for, and obtaining against the same the treas-
urer's check upon the funds of the county
made payable to the fictitious creditor of the
county, which check he would pass after
writing the name of the payee and his own
name on the back thereof. In support of

"Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter, or guilty knowledge, even though the reception of such evidence might establish a different and independent offense." "In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge. It is equally important in forgery and counterfeiting to establish scienter. The accused is charged with holding or circulating forged paper. He may hold one without being justly chargeable with knowledge of its character; when 3 or 4 are traced to him, suspicion thickens; if 15 or 20 are shown to have been in his possession at different times, then the improbability of innocence on his part decreases in proportion to the improbability that such papers could have been in his possession without his knowledge of the true character of the paper. If the accused is charged with knowingly making or holding or passing the forged paper, the possession being shown, but knowledge of its character being disputed, the fact to be proved is that the knowledge was guilty knowledge; and it is admissible to show that shortly before or after the fact charged he had made or had held or had uttered similar forged instruments to an extent that renders it improbable that he should have been ignorant of the forgery."

This accords with the rule stated by Mr. Wigmore in his work on Evidence, vol. 1, See, also, Ruling Case Law, vol. 8, There being an issue of guilty knowledge in the passing of the instrument in question, we think that evidence that appellant passed other forged checks similar in character was admissible. To make them admissible, however, they must be forgeries, and the accused's connection with them must be proved. Ham v. State, 4 Tex. App. 645.

To identify the instrument with which ap

were unknown. In this list there were 144 names.

pellant was connected, the state relied mainly upon the testimony of I. B. Padgett, who was county treasurer at the time of the There was evidence that the persons who transactions. It is plain from the statement worked for the commissioners' court were of facts that, in the operations of the com- both local and transient people. There was missioners' court, under the custom above re- also evidence that other members of the comferred to, a great many valid transactions missioners' court approved some of the acoccurred. In other words, through the meth- counts in the name of appellant. Ordinarily od mentioned a great many accounts were we understand the rule to be that, where the presented and proved by appellant, warrants payee of a questioned instrument is repredrawn and checks collected, satisfying valid sented to be or reside in the particular loclaims against the county and going into the cality, and sufficient inquiry is made, develhands of the lawful holders. There is evi- oping the fact that such person is not known dence of the banker who paid these checks in the locality named, a finding of the jury that his only means of knowing that the par- that this payee is a fictitious person would ticular checks submitted to him as a wit- be sustained. Greenleaf on Evidence, § 109; ness were paid to appellant was the fact that Cyc. vol. 19, pp. 1414, 1421. In this case a his name was indorsed thereon, and he ad- number of persons to whom the county might mitted that he sometimes required indorse have been indebted were transient, and some ment for the purpose of identification, and of the transactions introduced were quite rethat the fact that appellant's name was on mote, but, assuming that the proof met the the check was not conclusive to him that the legal measure that would establish the fact check may not have been paid to the payee that the persons who were not known were and the indorsement made for the purpose fictitious, and that the appellant forged the of identification. Padgett identified, as we indorsement on these, and that he also forggather from the record, 193 checks. The rel- ed the indorsement on the 6 or 7 with referevancy of these checks against appellant de-ence to which testimony was given as above pended upon proof that the indorsement stated, there remains some 40 of the checks thereon was forged. To meet the legal requirement that proof of the forgery be made by it, the state relied upon various circumstances. As to some of the checks, we gather from the evidence that there was testimony that the supposed spurious indorsement was written in appellant's handwriting. As to others, the state produced witnesses who were residents of the county and whose names were identical with the payee in the checks, which witnesses declared that they had no connection with the check or its indorsement. As to some of the checks introduced in evidence and identified by Padgett, there was evidence that there lived in the county persons whose names corresponded with that of the payee. As to the major Giving full assent to the proposition of portion of them, however, the evidence show-state's counsel that, when conditions are such ed that the payee was unknown, and from that collateral crimes are admissible against this circumstance the state presented the the- an accused, the state is not limited as to the ory that the warrants were obtained by ap- number it may introduce, it cannot be depellant in the name of fictitious persons, and nied that its right to introduce each of them that he wrote, or caused to be written, upon depends upon its ability to introduce legal the checks the fictitious name, writing his evidence competent to establish in a forgery own thereunder and passing the check. case that the collateral transaction was a forgery.

The witness Padgett in his testimony referred to several batches of checks, which he said he examined, and which bore the genuine indorsement of appellant. He gave testimony with reference to each of these checks, aggregating, as we estimate them, 193.

He testified that most of the payees of the checks were unknown to him, though some of them were known, and from his testimony it is difficult for us to determine just how many of the payees he claimed to have known. The banker referred to testified to a wide acquaintance in the county, and in connection with his testimony there

identified by Padgett, with reference to which there appears to be no sufficient proof of forgery. They seem to be drawn by Padgett in favor of payees who were not unknown, and he gave no testimony to negative their genuineness nor to refute the validity of the indorsement. It may be that this is not a correct analysis of the evidence, and the counsel conducting the trial are able to point out evidence fulfilling the legal requirement that all of the collateral transactions used against appellant were forgeries. They have not in their brief, nor in their motion for rehearing, pointed it out, and we, after repeated readings of the statement of facts, have failed to discover it.

No inference of a corrupt intent in passing the forged instrument declared on the indictment is to be drawn from the passing of a similar instrument which is not shown to be a forgery. We know of no rule which would inhibit use of circumstantial evidence to establish the fact that an instrument provable as a collateral transaction was a forgery, but, as said by the Supreme Court of Vermont in State v. Williams, 27 Vt. 725:

circumstantial and collateral to the main is"To be entitled to any force, as it is only sue, its truth should be established beyond all

Testimony being admissible for any purpose, sequence of the admission of these a rever-general objections of irrelevancy and immateri

I concur in the order overruling the mo- are of opinion that the evidence is sufficient. tion for rehearing.

Under our authorities it seems that it was within the discretion of the jury to assess the punishment, and it is rarely the case where a verdict is set aside because of ex

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

cessive punishment, where the statute gives a graduated punishment from a minimum to a maximum number of years.

[2] The case is one of circumstantial evidence. The property was taken from one of the shops of the Katy Railroad at Denison. Appellant testified, and it is shown, that he carried this brass from Denison to Dallas and sold it. He claims to have taken it for a man named Morrison, who delivered it to him for the purpose of selling it in Dallas. Appellant employed a chauffeur with a car, and in this car or auto he carried the property from Denison and sold it in Dallas. There was some uncertainty about his identification as the party who made the trade with the purchaser in Dallas. There is no uncertainty as to the fact he was in the car with the chauffeur when they drove to Dallas and when the sale was made. and that he hired the car for that purpose. The seller directed the purchaser to mail the check to Denison to Tom Morrison, ordering it to be drawn in Morrison's name. Later appellant and two other parties went near the postoffice in Denison and appellant directed one of the parties to go to the postoffice and call for the letter to Morrison. The officers immediately arrested appellant and the party who called for the letter. Appellant testified to the fact that Morrison induced him to carry this property to Dallas and sell it. Morrison was not identified and connected with it otherwise. There is some evidence to the effect that such a negro as Morrison was not known to the officers and people around Denison. It was claimed Morrison lived in Oklahoma, and brought this brass to Denison and induced appellant to carry it to Dallas and sell it for him. Appellant paid the chauffeur $18, or agreed to pay him $18, to carry him to Dallas to make the sale.

well taken. No special exceptions were urged. There was no error in this matter. Morgan v. State, 201 S. W. 654, recently decided.

There is quite a lengthy bill of exceptions containing questions propounded to the purchaser at Dallas and his answers with reference to the matters that occurred between himself and the seller and the conversations. This all was directed to the identity of the appellant as being the party in Dallas. We think it unnecessary to repeat this lengthy bill, but the testimony was admissible. The court qualifies this bill with this statement: "The defendant testified that he delivered to the dealer at Dallas the brass for which the check to Morrison was sent, and that he directed the purchaser of the brass at Dallas to mail the check for same to Tom Morrison at Denison."

We think with this explanation and defendant's testimony in connection with it, which is verified by the record, that this testimony was admissible.

[5] Bill of exceptions No. 7 will not be considered. The bill was qualified with this statement by the court:

tried finally adjourned on February 2, 1918. "The term of court at which this case was This bill of exceptions was presented to me upon April 5, 1918, and was never in any manner presented or called to my attention before and is now when first presented allowed and ordered filed herein."

filed with that statement. This was something over two months after the adjournment of court. There is no order in the record allowing the bill of exceptions to be so filed. The bill therefore came too late, and cannot be considered.

The court allowed the bill and ordered it

affirmed, and it is accordingly so ordered.

We are of opinion the judgment should be

(83 Tex. Cr. R. 400)

Ex parte HOLLINGSWORTH. (No. 5027.) (Court of Criminal Appeals of Texas. May 22, 1918.)

INTOXICATING LIQUORS

mm 15 MILITARY CAMPS-PROHIBITION ZONE-STATUTES-VA

LIDITY.

Acts 35th Leg. (4th Called Sess.) April 15, 1918, § 1, making it unlawful in time of war between United States and another nation to within 10 miles of the land or buildings occupied sell, barter, or exchange intoxicating liquors or controlled by the United States government and used as a fort, arsenal, training camp, or quarters, is not unconstitutional, but is a valid exercise of police powers.

[3, 4] The witness Craig, after testifying that he had been deputy sheriff of Grayson county for eight years, and had been special officer for the Missouri, Kansas & Texas Railway Company, and had been chief of police during the portion of the time he lived in Denison, was asked by the county attorney if in his experience as an officer he came in contact with the citizenship of Denison and the negroes of Denison. He answered both questions in the affirmative. He was then asked if he knew or had known a negro named Tom Morrison living in Denison. He answered in the negative. Objection was urged to this on the ground that it was irrelevant and immaterial and just an opinion and conclusion of the witness. It was a fact whether he knew Tom McLean, Scott & McLean and Leonard M. Morrison or not, and not his conclusion. Levy, all of Ft. Worth, for appellant. E. The objections on the ground of irrelevancy B. Hendricks, Asst. Atty. Gen., for the State. and immateriality may be treated as general demurrers. If this testimony was admissible MORROW, J. Relator, restrained under a for any purpose, these objections were not complaint charging, in substance, that he

Davidson, P. J., dissenting.

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

This section also declares a violation of such regulations if made would be a misdemeanor, punished with a fine not exceed-regulation of interstate commerce is not ing $1,000 or imprisonment for not more than 12 months, or both. Pursuant to this authority the President of the United States