# Mathis v. State > Court of Criminal Appeals of Texas · April 20, 1932 · 121 Tex. Crim. 131 URL: https://www.frixlaw.com/law-library/cases/3902493 ## Case - **Full name:** Charles Mathis v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 20, 1932 - **Citations:** 121 Tex. Crim. 131; 50 S.W.2d 312; 1932 Tex. Crim. App. LEXIS 419 - **Precedential status:** Published - **Opinion:** Addendum by Morrow - **Judges:** Christian, Morrow - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3902493 ## Opinion text *135 ON MOTION FOR REHEARING. MORROW, Presiding Judge. Challenging the soundness of the ruling on the original hearing in approving the action of the trial court in receiving the testimony of the tax assessor to the effect that he had searched the tax records of the county and failed to find the name of M. A. Hunt & Son, the appellant refers to the case of Lasister v. State, 49 Texas Crim. Rep., 532 , 94 S. W., 233 . Lasister was charged with forgery. Presiding Judge Davidson, writing the opinion, ordered a reversal upon several grounds: First, because of the refusal of the court to present in an affirmative charge the appellant’s defense. Second, because the court refused to charge on circumstantial evidence. Third, because of improperly receiving in evidence declarations and acts of the appellant while in jail. Fourth, because of misconduct of the jury. In the course of the opinion the court said that it was not competent to prove forgery by negative testimony going to show that the name of J. C. Johnson was not upon the tax rolls. The rolls were not introduced in evidence. From the opinion we quote: “Of course, the state may resort to such circumstances as are legitimate to prove the fact that J. C. Johnson was a fictitious person, but we hardly believe it permissible to show such fact by the tax collector- that the name of J. C. Johnson did not appear on his rolls. We do not understand that this proves or tends to prove that J. C. Johnson did not sign the check or that he was a fictitious person.” It is apparent that the item of evidence was unimportant in the Lasister case, and that the remarks quoted are in the nature of dicta, and, in so far as it conflicts with this opinion, is overruled. The decisions rendered by this court on the subject of the admissibility of such testimony are not harmonious. Among them are the following: Dawson v. State, 38 Texas Crim. Rep., 50 , 41 S. W., 599 ; Dawson v. State, 38 Texas Crim. Rep., 9 , 40 S. W., 731 ; Taylor v. State, 50 Texas Crim. Rep., 381 , 97 S. W., 474 ; Fluewellian v. State, 59 Texas Crim. Rep., 334 , 128 S. W., 621 ; Feeney v. State, 58 Texas Crim. Rep., 152 , 124 S. W., 944 ; Fry v. State, 86 Texas Crim. Rep., 73 , 215 S. W., 560 ; Cox v. State, 92 Texas Crim. Rep., 497 , 244 S. W., 605 . It may be that the testimony in the Lasister case, supra, was not of sufficient weight under the facts to support the contention that Johnson was a fictitious person. In the present case, the testimony of the tax assessor attacked in the appeal, is but one of the many items of testimony supporting the decision that the name of M. A. Hunt & Son was a fictitious name. There were acts of the appellant proved, as well as the testimony from other sources, which are ample to support the verdict without reference to the testimony touching the tax roll. It appears from the testimony that the appellant, in passing the check, gave his name as Bud Huse. He possessed othet checks bearing the signature of *136 M. A. Hunt & Son, which resulted in his indictment in other cases. While talking to an officer in the jail, the appellant reached through the bars, seized the check and destroyed it. The evidence was conclusive that the appellant’s real name was Charles Mathis. A deputy sheriff testified to a search and inquiry to ascertain the existence of the firm of M. A. Hunt & Son or the individuals thereof. Inquiry was made at various places as shown by the testimony. The banker upon whom the check was drawn gave testimony tending to show that there had been- no such account as M. A. Hunt & Son in the bank upon which the check was drawn and no such person was known to the banker. In Underhill’s Crim. Evidence (3rd Ed.), sec. 633, it is said: “Evidence is relevant, which shows or tends to show the existence or nonexistence of the person who is supposed or pretended to be indicated by the name; but the State need not prove beyond a reasonable doubt that there was no such person. A resident of the town in which he is alleged to have lived is competent to prove that he was unknown there, though the witness may not be able to swear absolutely that he knew every resident. * * * It may be shown in general that policemen, postmen and residents had never heard of him, and that an officer of the court, as a sheriff, though he made a diligent search among persons most likely to know him, was unable to find him, or to secure any information of his whereabouts. The searcher may state what he did and the fact that he had a conversation with some one, and with whom, and could get no information, though he may not repeat answers made to his inquiries (as these would be hearsay) for the purpose of proving the fictitious character of the person. Evidence of this sort, proving prima facie the nonexistence of the person whose name was signed, may be sufficient in the absence of rebuttal.” In a case of forgery where it is contended that a fictitious name was used, the testimony of detectives and policemen who have made an investí-, gation and attempted without success to find the party whose name purports to have been signed to the instrument, may be introduced, and the extent and nature of the investigation goes to the weight and not to the competency of the evidence. On the same point, city directories, the testimony of bank officers who are familiar with the accounts and customers of the bank, and other similar circumstances with reference to the general or special knowledge of the particular matter under investigation have been regarded as competent and admissible, as shown by the many precedents which are found collated in Amer. Law Rep., vol. 9, p. 414, including cases from California, Louisiana, Michigan, Alabama, Arkansas, Missouri, and cases from the English courts. Among the cases so holding the following may be mentioned: People v. Sharp, 53 Mich., 523 , 19 N. W., 168 ; State v. Hahn, 38 La. Ann., 169 ; People *137 v. Eppinger, 105 Cal., 36 , 38 Pac., 538 ; State v. Allen, 116 Mo., 548 , 22 S. W., 792 ; Maloney v. State, 91 Ark., 485, 121 S. W., 728 , 134 Am. St. Rep., 83 , 18 Ann. Cas., 480; Williams v. State, 126 Ala., 50 , 28 So., 632 ; People v. Laird, 118 Cal., 291 , 50 Pac., 431 . See, also, Wigmore on Evidence (2d Ed.), vol. 1, secs. 158 and 670; also, People v. Jones, 106 N. Y., 523 , 13 N. E., 93 . The motion for rehearing is overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3902493. Public record. Not legal advice.