#### IVEY v. STATE.

No. 14596.

Court of Criminal Appeals of Texas.

June 24, 1932.

Howard & Jackson, of El Paso, for appellant.

*717Lloyd W. Davidson, State’s Atty., of Austin, for the State.

MORROW, P. ,T.

Passing a forged instrument is the offense; penalty assessed at confinement in the penitentiary for five years.

The instrument is described as follows:

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The travelers’ check was signed by the maker, George Weston, treasurer. The fraudulent writing of the name, J. B. Bench, in the instrument, it is thought comes within the terms of forgel-y by virtue of article 992, P. C. 1925, in which it is declared: “It is a forgery to make, with intent to defraud or injure, a written instrument, by filling up over a genuine signature.”

The appellant and one Cloud were jointly indicted and jointly tried. The facts touching their culpability are not identical. In trying them together under such circumstances, it is difficult to preserve the record for appeal in such condition as will differentiate between the rights of the respective in-dictees. In the present instance, Cloud made an extrajudicial confession which was introduced on the trial. The following are the material parts of the confession: About the 31st of January, Cloud learned that some man was trying to sell some “hot money.” He located the man and ascertained that the paper for sale was not money, but travelers’ cheeks, which were minus the signature of the consignee. He purchased ten of these checks, and in each of them wrote under the line left for the signature, “J. B. Bench,” a fictitious name. He retained the checks fox-ten days before attempting to cash them, but did cash chock No. M-C500104, at the Plateau Filling Station. From the confession, the following is quoted: “When I got all of these checks they were in blank and when I asked the man to cash one of them I would always write the name J. B. Bench in the lower left-hand corner. I had previously written the name J. B. Bench in the upper left-hand corner before I started out cashing them. * * * Curtis Ivey was with me on all of the trips when I was cashing these cheeks from February Sth or February 12th, 1931.”

From the testimony of R. B. Ivey, brother of the appellant, Curtis Ivey, it appears that Cloud came to the home of the witness, who lived at Amherst, about the 8th of February, that Curtis Ivey and Cloud left the home of the witness in the latter’s car and returned in about four days. The car, on its return, had no license number.

The witness Tinnin, who conducted the Plateau Service Station, testified that he cashed the travelérs’ check described in the indictment about the 10th of February. In his direct testimony he said: “It was in the daytime when I cashed this check. . Mr. Ivey was the man that passed the instrument to me. He was traveling in a Ford car. * 3⁄8 * There was another party in the car with Mr. Ivey. I didn’t see the other man; he didn’t get out of the car.”

On cross-examination, the witness said: “I had never seen either of the men before. 1 had a transaction there a few minutes, selling gasoline. * **** The men were about the same size; both are dark complexioned; their hair is dark. I can be positive it was not the other man who gave me the check. * 3⁄8 7⁄8 The eheeij was signed on the top line before it was given me, but the man signed it there in my presence. The signature on the top line looks very much like the signature on the bottom line; looks like the same man- wrote both signatures. The man who passed it to me signed that bottom signature in my presence. * * * The man that remained in the car didn’t speak to me and didn’t get out.”

The witness said that about a week after receiving the check he saw a photograph of Ivey. There were other photographs shown him at the same time by Mr. Baty, the agent of the express company. He identified one of *718these photographs as that of Ivey. No photograph of Cloud was among those shown him. 1-Ie said that two persons were present at the filling station when the check was passed. .

A banker, who was a handwriting expert, testified for the state that in his opinion the name J. B. Bench, in both places was apparently written by the same person; at least, that was his opinion. It was shown by the banker that about the 7th of January, 1931, his bank was robbed of various travelers’ cheeks, one of which he identified as that described in the indictment. The checks had different serial numbers, but the paj'ee’s name was not on any of them. He said further that neither Cloud nor Ivey were present at the time the checks were taken from the bank. The reception of his testimony was opposed upon the ground that it was proof of a disconnected offense.

Cloud’s confession seems to have come into the evidence without objection. In fact, no objection to it would have been tenable since the cases were tried together. Cloud’s confession if opposed, would not have been evidence against the appellant.

The banker’s testimony showed that neither the appellant nor Cloud was the robber.

After defining the law of principals, the court, in submitting the case to the jury, used the following language: “If you believe from the evidence beyond a reasonable doubt that at the time and place mentioned in the indictment either of these defendants passed to C. G. Tinnin the instrument in writing described in the indictment, and further so believe that it was a forged instrument and further so believe that at the time of passing it the defendant who passed it knew it was forged, or if you believe that the same was a forged instrument and that the person pass’ing it knew it was forged and that it was passed by one of these defendants and that the other was present and knew the unlawful intent and aided in the passing of the same or agreed to it in pursuance of a common design, then and in either event find the defendant or defendants as to whom you so believe guilty of knowingly passing a forged instrument in writing as true and assess his or their punishment severally at confinement in the penitentiary for a term of not less than two nor more than five years. If you do not so believe acquit the defendant or defendants as to whom you do not so believe, unless you find him or them guilty of knowingly having in possession a forged instrument with intent to pass the same as true.”

It appears from an analysis of the evidence that the alleged forged instrument was acquired by Cloud in the absence of the appellant. There is an absence of testimony showing that the appellant knew of the robbery through which the checks were lost or that he knew that Cloud had acquired them illegally. As to whether the check was passed at the filling station by Cloud or Ivey the evidence is conflicting. The testimony upon the subject all comes from the state. In Cloud’s confession, which the state introduced, it was shown that he passed an instrument countersigned in the name of Bench. An expert witness introduced by the state upon the subject tends to corroborate Cloud’s testimony to the effect that he was the one who countersigned the check. It is to be inferred from his testimony that, before he and the appellant became associated on the trip, Cloud had written the name of J. B. Bench on the upper left-hand corner of the checks. His 'signature being upon the check in one place, it would be quite consistent with his policy that the countersigning should also be in his handwriting. The state’s witness Tin-nin identified the appellant as the person who delivered the check to him and countersigned it. There is no direct testimony to show that the appellant knew that the check was forged or fraudulently obtained by Cloud. The charge of the court properly states the law that the appellant’s guilt would depend upon his acting in the transaction with guilty knowledge. That phase of the case was not submitted to the jury in a manner that would protect the appellant’s rights. The charge connected the two upon equal terms, while from the state’s testimony Cloud was the actor in every particular, unless it be that the jury should find that it was the appellant who put on the check at the time it was passed the name of J. B. Bench. That seems the only cogent circumstance discernible from the evidence upon which the essential fact of guilty knowledge could be fixed upon the appellant, Ivey. Upon another trial, on like facts,' there should be a charge on the law of circumstantial evidence. See Verner v. State (Tex. Cr. App.) 35 S.W.(2d) 428.

In the present instance, Cloud’s admitted acquisition of the stolen checks, with knowledge that they were stolen, differentiates his case from that of the appellant, who was not present when the checks were acquired, and, so far as the record shows, knew nothing of the circumstances under which Cloud obtained them.

The appellant’s reputation as a law-abiding citizen was proved to be good.

On the record before this court, the opinion is entertained that the judgment convicting the appellant, Ivey, should be reversed, and the cause remanded, which is accordingly ordered.