Thomas, Alias Morse v. State , 40 Tex. Crim. 562 ( 1899 )

Appellant was convicted of uttering a forged instrument, and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.

The only question urged by appellant for reversal is that the alleged forged instrument did not have the required internal revenue stamp on it, the instrument being in the form of an order to pay money. The contention of appellant is that said instrument is void on account of the Federal statute requiring such an instrument to be stamped, and that, unless it is stamped, it shall be deemed invalid, and of no effect; and that it is further provided that any such instrument, if executed since July 1, 1898, and not stamped with a stamp, shall not be admissible in evidence. We understand the act in question was for the purpose of levying and collecting a tax on all instruments required under the act to be stamped, and no doubt Congress would have the right to say that no instrument required under the act to be stamped should be used in evidence in any proceeding in any Federal court unless it contained the required stamp. But we do not believe Congress would have the power to regulate the introduction of evidence in State courts. Nor do we doubt the power of Congress to require stamps to be placed on certain enumerated instruments, — among them the instrument in question, — and to provide a penalty for the failure to stamp such an instrument, and to punish all persons failing to comply with the stamp act under proper proceedings in the Federal court. But we do not believe the act in question was intended to invalidate and make absolutely void orders for money, such as the one in question, unless the same should be properly stamped. To hold otherwise would be to interpolate, a new provision of law outside of our statutes on the subject of forgery, and authorize the federal statutes on the subject to control the matter. This is not like the case of Caffey v. State, 36 Texas Criminal Reports, 198, referred to by appellant, in which the instrument was a creature of our law; and we held in that case that the instrument was not complete, so as to import an obligation. Here the instrument was complete in form, and under our law and commercial usage does import an obligation. The Federal statutes themselves do not seem to treat the instrument without a stamp as absolutely void, but authorize it to be subsequently stamped on certain proof; so that the instrument in question unstamped is apparently of some legal efficiency, and, as far as the same is concerned, the stamp is an extrinsic matter, and, as stated above, is authorized under Federal statutes, under certain circumstances, if unstamped, to be stamped. All the authorities, English and American, hold such an unstamped instrument the subject of forgery. 2 Bish. Crim. Law, sec. 540, and authorities there cited; 2 McClain Crim. Law, sec. 758, and authorities there cited. And we particularly refer to the following cases: Cross v. People, 47 Ill. 152; State v. Hill, 30 Wis. 416, which overrules the former case of John v. State, 23 Wis. 504; Laird v. People, 61 Md. 309; State v. Young, 47 N.H. 402. There being no error in the record, the judgment is affirmed.

Affirmed.