commit the offense of which he is accused, and exclude any reasonable hypothesis except the guilt of the defendant.

FORGERY-VENIRE.-Under a statute providing that "the offense of forgery may be prosecuted in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed," the forger may be prosecuted in the county where the forged instrument was passed, although it purported to be executed in another county. In such case, although the indictment alleges that the instrument was made in the county where it was passed, it is not necessary for the prosecution to prove such allegation as a prerequisite to conviction.

W. G. Barber, for the appellant.

M. Trice, assistant attorney general, for the state.

361 DAVIDSON, J. Appellant was convicted of forgery. Omitting prior averments, the indictment, in its purport clause, charges that appellant "did then and there, without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a false instrument, in writing, purporting to be the act of another, to wit, the act of Clay Rollins, a fictitious person, which said false instrument is to the tenor of the following." Then follows the tenor clause, and the instrument does not purport to be the act of a fictitious person, but the act of Clay Rollins. This, it is insisted, constitutes a variance. We do not understand the purport clause as alleging that the tenor clause discloses that Clay Rollins was a fictitious person. The purport clause does not allege the act purported to be that of a fictitious person, but simply that Clay Rollins was such a person. It was but descriptive of the person whose name was forged, and not an averment that the instrument purported to be that of a fictitious or unreal person. Westbrook v. State, 23 Tex. Crim. App. 401, and Roberts v. State, 2 Tex. Crim. App. 4, cited by appellant, are not in point. Nor can we agree to the proposition that the use of a name of a fictitious person cannot be made to constitute forgery. It is thoroughly settled that forgery can thus be committed: Brewer v. State, 32 Tex. Crim. Rep. 74; 40 Am. St. Rep. 760; Davis v. State, 34 Tex. Crim. Rep. 117; 8 Am. & Eng. Ency. of Law, 457, and note; People v. Brown, 72 N. Y. 571; 28 Am. Rep. 183; State v. Hahn, 38 La. Ann. 169; Luttrell v. State, 85 Tenn. 232; 4 Am. St. Rep. 760; 2 Wharton's Criminal Law, sec. 1424; 2 Russell on Crimes, 733; Commonwealth v. Costello, 120 Mass. 370.

In the case last cited it was said: "The essential element of forgery consists in the intent, when making the signature, of procuring it to be made to pass it off fraudulently as the signature of another party than the one who actually makes it. If this intent thus to personate another 362 exists, the instrument

is still a forgery, even if the name affixed is actually the same name with that borne by the party who signs it. So there may be forgery by the use of a fictitious name, as well as by the use of a person's own name, if the intent exists to commit a fraud by deception as to the identity of the person who uses the name." Again it is said: "The law is settled, that the signing of a fictitious name to an instrument with a fraudulent intent constitutes forgery": State v. Wheeler, 20 Or. 192; 23 Am. St. Rep. 119, and cited authorities. The court charged the jury, that "in order to warrant a conviction alone on circumstantial evidence, all the recessary facts must be consistent with each other, and with the main fact sought to be established; and they must be of so conclusive a nature that, when considered in connection, they lead reasonably and with moral certainty to the conclusion that the defendant did commit the offense of which he is accused, and exclude any reasonable hypothesis except the guilt of the defendant." This charge was objected to, because it "failed to charge the jury that each fact or circumstance relied on by the state as constituting a link in the chain of circumstances must itself be proven by competent evidence beyond a reasonable doubt, and did not lay down the rule by which the jury should be governed in weighing each fact or circumstance, and then grouping them together as a whole." This exception states the rule applicable to circumstantial evidence rather too broadly, and may not, in many cases, be correct. The circumstances and facts do not always arrange themselves, or are not arranged by the evidence in the form of a chain, and do not always so depend the one upon the other as to constitute such chain. But they may, and frequently do, array themselves in a group or number of isolated and independent facts, "in such a manner that each isolated fact, though insufficient of itself to raise the conclusion of guilt, points to it with more or less force, so that the whole group of facts, according to the strength or number of isolated facts, will, when considered together, create a satisfactory conclusion of guilt. In by far the greater number of cases it is believed the facts thus arrange themselves, and not in the form of a chain. When they so arrange themselves, they have been more properly likened to the strand of a cable. One or more of the strands may break, but the cable itself will not part": Thompson on Trials, par. 2512, note 3. These ultimate or necessary facts essential to the conclusion of guilt should be proven as satisfactorily as the main fact. If all the facts are so proved that are necessary or essential to justify the conviction, it would hardly be correct to hold that others, relied on by the state, not necessary to the convic

tion, should also be proved as cogently as the main fact, for the conviction could be supported without such facts; and besides, they may tend only remotely to prove guilt, though relied on, and the case may be completely proved independently of them. The court charged fully upon reasonable doubt, as well as upon the issue that Clay Rollins was a fictitious person, and the jury were further 363 instructed this fact must be proved, or the defendant was entitled to an acquittal. They were further told that they must believe defendant signed the name of "Clay Rollins" to the instrument, and that he used such name as the name of a fictitious person; otherwise they should acquit. The charge on circumstantial evidence, as given, is believed to be sufficient, when applied to the evidence in this case. Not only so, but the court went further, and gave a pertinent charge directly applicable to the inculpatory facts proved on the trial. There was no possible chance that we can conceive, in this case, for the jury to have been misled as to the law applicable to the facts, or for them to have misunderstood their duty in passing upon the testimony. The charge was a direct, pertinent application of the law to the evidence, independent of the charge on circumstantial evidence.

Appellant requested the court to charge the jury that, the state having alleged the instrument was made in Hays county, it was necessary to prove it as a prerequisite to conviction. It was refused, and exception reserved. The court's action was correct, for the statute provides: "The offense of forgery may be prosecuted in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed": Code Crim. Proc., art. 206. The instrument purports to have been executed in San Antonio, Bexar county, but was passed in Hays county. This was sufficient on question of venue. The instrument, if genuine, would have authorized defendant to have disposed of the interest "Clay Rollins" may have had in the property described in it. He consummated a sale of a portion of said property under and by virtue of its terms, and used it as authority for such disposition.

We are of opinion the record is free from reversible errors, and the judgment should be affirmed, and it is so ordered. Judges all present and concurring.

FORGERY-SIGNING NAME OF FICTITIOUS PERSON.-Signing the name of a fictitious person, with intent to defraud, is a forgery: State v. Warren, 109 Mo. 430; 32 Am. St. Rep. 681, and note; State v. Wheeler, 20 Or. 192; 23 Am. St. Rep. 119, and note.

FORGERY.-WHERE DEEMED TO HAVE BEEN COMMITTED is discussed in the extended note to Simpson v. State, 44 Am. St. Rep. 83.

CIRCUMSTANTIAL EVIDENCE SUFFICIENT to support a verdict of conviction must be consistent with guilt and inconsistent with any other reasonable hypothesis: State v. Atkinson, 40 S. C. 363; 42 Am. St. Rep. 877, and note. Absolute certainty is not essential to proof by circumstances, and, if they produce moral certainty to the exclusion of every reasonable doubt, it is sufficient: Carlton v. People, 150 Ill. 181; 41 Am. St. Rep. 346, and note with the cases collected. See, also, the extended note to Rippey v. Miller, 62 Am. Dec. 179.

BAXTER V. STATE.

[34 TEXAS CRIMINAL REPORTS, 516.]

SLANDER OF WIFE BY HUSBAND.-A husband who previously to his marriage, had carnal knowledge of his wife is not guilty of slander in imputing to her a want of chastity, and stating that he was not the father of her child, born after marriage, and that she had also had carnal intercourse with another man besides himself.

SLANDER BY IMPUTING WANT OF CHASTITY to a female is only predicable upon the fact that such female is a chaste woman. HUSBAND AND WIFE-WITNESSES AGAINST EACH OTHER.-A statute providing that husband and wife cannot testify against each other, except in a criminal prosecution for an offense committed by one against the other, must be construed to mean an act of personal violence committed by one against the other.

HUSBAND AND WIFE-WITNESSES AGAINST EACH OTHER.-In an action for slander uttered by a husband against his wife, she is incompetent as a witness against him.

Turner & Turner, Jones & Jones, and W. C. Buford, for the appellant.

R. L. Henry, assistant attorney general, for the state.

518 HENDERSON, J. The appellant in this case was tried in the court below on an indictment charging him with slander, was convicted, and his punishment assessed at a fine of one hundred and fifty dollars and six months' imprisonment in the county jail; and from the judgment and sentence of the lower court he prosecutes this appeal.

The slander, as alleged in the indictment, is as follows: "That the said J. R. Baxter did then and there falsely, willfully, maliciously, and wantonly say of and concerning one Mittie Baxter, in the presence and hearing of Ross Norvell and divers other persons, in substance, that he, the said J. R. Baxter, had been deceived, and that the child of Mittie Baxter was not the child of said J. R. Baxter, but was the child of one Houston, meaning thereby that the said Mittie Baxter had given birth to the child,

and that the said Houston, a person other than the husband of said Mittie Baxter, had had carnal intercourse with her, the said Mittie Baxter, and was the father of said child, the said Mittie Baxter being then and there the lawful wife of said J. R. Baxter." The record in this case shows that the defendant married Mittie Baxter on the 8th of January, 1892, and that about a week thereafter he took her to Louisville, Kentucky, where, on February 3d, following, she was delivered of a child. He returned to Texas, leaving her in Louisville, and the words set out in the indictment as constituting the slander were spoken by him of and concerning his wife after his return from Kentucky. The evidence on the part of the state shows various acts of carnal intercourse on the part of the defendant with the said Mittie Baxter, nee Tips, prior to their intermarriage; and the question here presented for our consideration is, whether a husband, who has, previous to his intermarriage, had carnal knowledge of his wife, can slander her by imputing to her a want of chastity under the circumstances of this case. The gravamen of this offense is the imputation of a want of chastity to a female alleged to be slandered. If the prosecutrix in this case, as is conceded by the state, had repeated acts of carnal intercourse with the defendant prior to their marriage, could she, under such circumstances, be regarded as a chaste woman? Suppose he had never married her, and had spoken the words alleged against him in this case concerning her, would proofs of the facts of this case be a good defense against the accusation of slander? Most assuredly they would. Then, does it follow that, because he subsequently married the prosecutrix, he by these means wiped out the stigma of unchastity which by her own voluntary act she had brought about? And, if this sexual intercourse rendered her unchaste, was she the subject of slander, which can only be predicated of a chaste woman? If this be true, can it be urged that what the defendant said of and concerning her-that she had also had intercourse with another person besides himself-made him guilty of slander? If, by her previous ill-conduct in this regard, she had destroyed her virtue and rendered herself unchaste, we fail to see how an accusation of a want of chastity with any number of persons could affect the question. However 519 the moral sentiment may be shocked at the man who could be brute enough, after marrying a woman whom he knew to be unchaste at the time of his marriage, to upbraid her for her past conduct, and much more falsely accuse her of carnal intercourse with other men besides himself, yet our statute on the subject fails to reach

AM. ST. REP., VOL. LIII.-46