# Hanson v. State > Court of Criminal Appeals of Texas · January 3, 1940 · 139 Tex. Crim. 233 URL: https://www.frixlaw.com/law-library/cases/4899923 ## Case - **Full name:** Oscar Hanson v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 3, 1940 - **Citations:** 139 Tex. Crim. 233; 139 S.W.2d 573; 1940 Tex. Crim. App. LEXIS 298 - **Precedential status:** Published - **Opinion:** On rehearing by Hawkins - **Judges:** Hawkins, Krueger - **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/4899923 ## How later opinions describe it (automated extraction) - explaining that the harmfulness of the prosecutor's statement in Roberts was that he actually had personal knowledge regarding whether the defendant was lying ## Opinion text ON MOTION FOR REHEARING. HAWKINS, Presiding Judge. We inadvertently stated in our original opinion that the offense was “passing a forged instrument.” The charge and conviction was for “attempting to pass as true a forged instrument.” Appellant insists that the trial court committed error in refusing a continuance -sought for the witnesses Sanders and Roberts, one of whom purported to be the signer of the alleged forged check, and the other the payee. When the application for continuance was presented it was contested and the court heard evidence thereon before denying it. Much evidence during the trial had a bearing on these purported witnesses. In appellant’s confession he said: “I have been shown a check for $22.50, dated February 22, 1939, payable to J. C. Roberts, signed W. E. Sanders, on the First National Bank of Hubbard, Texas. I wrote out this check out myself in the town of Coleman, Texas, and signed the name of W. E. Sanders to the check. I do not know anybody by the name of W. E. Sanders and this was a fictitious name. I forged the name of W. E. Sanders to the check.” If that statement is true it is not surprising that the purported Sanders and Roberts could not be found, and that the two men who were found bearing said names knew nothing of the transaction. It is true that on the trial appellant contradicted his confession, but all the evidence both on the main trial and on the application for continuance was before the trial judge on the motion for new trial, and we think makes *240 pertinently applicable that part of Sec. 6, Art. 543, C. C. P. here quoted: “* * * The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right. If an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted, and the cause continued or postponed to a future day of the same term.” In view of all the testimony before him the trial court was justified in refusing a new trial based upon his denial of a continuance on the ground that the matters set up in the application for continuance were not probably true, and that the purported witnesses were fictitious. See authorities cited under Note 35, Art. 543, Vol. 1, Vernon’s Ann. Tex. C. C. P., Sec. 306, Branch’s Ann. Tex. P. C., Grayson v. State, 91 Tex. Cr. R. 137 , 236 S. W. 1110 ; Weaver v. State, 91 Tex. Cr. R. 637 , 240 S. W. 543 , Evans v. State, 91 Tex. Cr. R. 579 , 240 S. W. 916 . Appellant also insists that the confession introduced in evidence against him was not voluntarily made. When the confession was offered in evidence and objection interposed the trial court retired the jury and heard the testimony regarding the taking of said confession, some of which is included in bill of exception number two. The court approves the bill with the statement that it does “not fairly reflect the full facts” regarding the matter and refers us to the statement of facts and certain pages thereof as bearing on the question of the voluntary character of the confession. We learn therefrom that the officers had been informed of appellant’s effort to pass the check alleged to have been forged and when they approached and interrogated appellant about it he made an effort to chew up and swallow said check, whereupon the officers undertook to prevent him from destroying the check. In the tussle with him they threw him to the ground and choked him to prevent him from swallowing the check. One of the officers inserted his finger in appellant’s mouth to extract the paper, and appellant bit his finger. One, or perhaps two of the officers slapped him— whether it was the one whose finger appellant had bitten is not clear. The blow struck appellant on the nose caused it to *241 bleed. We are led to believe appellant did not receive the serious injury in the tussle with the officers that he claimed upon the trial. The incident regarding the officers’ efforts to prevent appellant from destroying the check had nothing whatever to do with the confession, and was not an act of the officers done with intent or thought of securing a confession. Appellant claimed upon the trial that he Avas addled and excited when he gave the confession, and did not realize what he was doing. We think the court not in error in admitting the confession in evidence under all the facts before him. An issue having been made regarding the matter, however, he submitted the issue to the jury in the following instruction. “You are further instructed that you will not consider the statement or confession of the defendant which was introduced in evidence unless you find and believe from the evidence that he freely and voluntarily made and signed such statement, and that he knew at the time what he was doing, and what the instrument he was signing was. “If you should find and believe from the evidence that at the time the defendant made such statement he was nervous and excited to such an extent that he did not know what he was doing, or that he was laboring under any fear of violence from the officers, or because of any pressure brought to bear by the officers you will not consider same. If you have a reasonable doubt as to the facts in regard to this you will give the defendant the benefit of such doubt and not consider said statement.” The trial court was justified in admitting the confession and in submitting the issue to the jury he followed the procedure long recognized by this court as proper, and the evidence before the jury warranted them in considering said confession. Appellant insists that the remarks in argument of the District Attorney complained of in bill of exception number twenty-one presents reversible error. The language complained of was as follows: “This defendant lied at the Wilson Grain Company, and he lied again when he was at Brownwood to Roscoe Brooks.” The statement presumably referred to the incident at the Wilson Grain Company where appellant told Mr. Williams that appellant’s name was “J. C. Robert,” — the name of the payee in the check — and that he lived at Santa Anna, and to the incident at Brownwood where he told Mr. Brooks that his (appellant’s) name was “J. C. Roberts,” and that his address was Blanket, Texas. Appellant cites us to Stroehmer v. State, *242 100 Tex. Cr. R. 90 , 272 S. W. 163 ; Nichols v. State, 106 Tex. Cr. R. 108 , 290 S. W. 1093 ; Roberts v. State, 107 Tex. Cr. R. 139 , 295 S. W. 609 , as supporting complaint of the argument. The two cases first mentioned are so entirely different on the facts as to be without force as a precedent. In the Roberts case the language complained of related to a claimed conversation between accused in that case and the private prosecutor whose statement was not predicated on the evidence, and a conclusion therefrom, but was an expression based on his conversation with accused. Such is not the case here. The jury knew that the District Attorney had no personal knowledge regarding the conversation appellant had either with Brooks or at the Wilson Grain Company, hence also knew that the language complained of was the attorney’s conclusion from the evidence in the case. Franklin v. State, 104 Tex. Cr. R. 240 , 283 S. W. 802 is directly in point. We think it not necessary to discuss other matters urged by appellant. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4899923. Public record. Not legal advice.