Decherd v. State , 104 Tex. Crim. 105 ( 1926 )

Forgery is the offense, punishment fixed at confinement in the penitentiary for a period of six and one-half years.

It is charged in the indictment that the release of a vendor's lien from S. T. Tubbs to Morgan Callaway, Jr., was forged. The release is set out in the indictment and states in substance that on the first day of July, 1921, George T. Vickers conveyed by deed to Henry Dannelly, lot 6, block 1 of R. B. Parks' Subdivision of Block 1405 of the City of Dallas; that in the deed there was retained a vendor's lien to secure $1,250.00 purchase money which was evidenced by a note for that sum, dated July, 1921, payable to George T. Vickers. The instrument recites that the note has been paid to S. T. Tubbs, the legal owner, and that the lien securing it is released. The instrument, dated July 5, 1924, purports to bear the signature of S. T. Tubbs and to have been acknowledged on the same day before E. A. Decherd, a notary public of Dallas County, Texas. That this release was forged by him was proved both by the confession of the appellant and by the testimony of other witnesses.

Dr. Morgan Callaway, Jr., was a resident of the City of Austin. He was a professor of English in the University of Texas. Appellant had, in former years, been a student in the University and in after years had had dealings with Dr. Callaway. Upon the request of the appellant, Dr. Callaway went to the Driskill Hotel in Austin, where they met a man whom the appellant introduced as Wisdom. A note payable to George T. Vickers for $1,250.00, dated July 1, 1921, signed by Henry Dannelly, was exhibited to Dr. Callaway. This note was introduced in evidence, and, according to its purport, was secured by a vendor's lien upon Lot 6, Block 1 of R. B. Parks' Subdivision of Block 1405 of the City of Dallas, purported to have been transferred by George T. Vickers to S. T. Tubbs and by him transferred to C. E. Wisdom. This note and the release described in the indictment were delivered to Dr. Callaway in consideration for which he gave a check for $1,080.00, payable to S. T. Tubbs. This check and the proceeds thereof were collected and used by the appellant, and the purported note for $1,250.00 was forged by him.

The validity of the indictment is attacked upon the ground that in charging the intent with which the forgery was committed, it failed to use the language contained in the statute. The general statute denouncing forgery contains these words:

"He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever." (Art. 979, P. C., 1925.)

Uniformly, the courts have held that when charging the intent in ordinary forgery, it is unnecessary to go further than to use the language of the general statute which we have quoted, namely, "with intent to injure or defraud." See Art. 454, Vernon's Texas Crim. Stat., Vol. 2; Johnson v. State,35 Tex. Crim. 271.

Article 947, P. C., (New 1006) upon which the present prosecution is founded, was enacted in 1876. It has special reference to forgery of land titles and declares guilty of forgery, every person who falsely makes, alters, forges or counterfeits, or causes or procures such to be done "with the intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist anyone else in setting up a claim or title, to lands or any interest in lands, or to prosecute or defend a suit, or aid or assist anyone else in prosecuting or defending a suit with respect to lands, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owners of lands, or with any fraudulent intentwhatever, shall be deemed guilty of forgery."

It is the contention of the appellant that the indictment is invalid in that it fails to set forth by way of averment the specific intent with which the false instrument was made. From the indictment in question, we take the following quotation:

" * * * then and there, without lawful authority and with intent to injure and defraud, wilfully and fraudulently, did make and forge a false instrument in writing, purporting to be the act of another, which false and forged instrument did then and there relate to and affect an interest in land in the said State of Texas, and was then and there so falsely made by the said E. A. Decherd in such manner that if the same were true and genuine it would have affected and transferred the title to certain land in the said State of Texas, and which said false instrument purports to be a Release of Vendor's Lien from S. T. Tubbs to Morgan Callaway, Jr., and is of the following tenor, etc."

It is to be noted that the pleader, in charging the intent, has used general terms which are in substance those used in the statute, which says: "or in any way injure or with any fraudulent intent whatever." We note that in Willson's Texas Criminal Forms (Form 43), page 221, the form of indictment under this statute is the same as that used in the present instance, and reference made to numerous cases. Among them is Ham v. State, 4 Texas Crim. App., 645, in which the indictment in the particular in question was like that in the instant case. See also Francis v. State, 7 Texas Crim. App., 501; Johnson v. State, 9 Texas Crim. App., 249. The opinion in Ham v. State, supra, was rendered in the year 1878, since which time there have been several revisions of the statute without change in the article now under consideration in the particular mentioned. Under these conditions the presumption of legislative sanction of the judicial interpretation prevails. See Lewis v. State, 58 Tex.Crim. Rep., and precedents there cited. Moreover, it is to be noted that in the chapter enacted at the same time as Article 947 old (1006 new) is found Article 951 old (1010 new), in which it is said:

" * * * and it shall only be necessary in an indictment under this chapter to state with reasonable certainty the act constituting the offense, and charge, in connection therewith, in general terms, the intention to defraud, without naming the person or persons it was intended to defraud."

It is conceded by the appellant that this court, in several cases of comparatively recent date, has upheld an indictment couched in the same terms as those criticized in the present instance. See Thompson v. State, 69 Tex.Crim. Rep.; Weber v. State, 78 Tex.Crim. Rep.; Roberts v. State,85 Tex. Crim. 196. In these cases the attack upon the indictment was not in the express terms of that in the present instance.

Appellant cites numerous precedents supporting the general proposition that words of the statute descriptive of the act condemned and proof of which is essential may not be omitted but must be set up by avertment. We are of the opinion that for the reasons hereinabove stated, the indictment in the present case should be upheld; and we are also of the opinion that the precedents upholding it are not at variance with the general principles upon which appellant relies touching the sufficiency of the indictment; that in stating the intent in the indictment, under the statute in question, the averment is sufficient which charges that the act was without lawful authority and with the intent to defraud. This view finds support in the language of the statute wherein it is said: "or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owners of the land, or with any fraudulent intent whatever," and in Article 951 (new 1010), which is quoted above.

In the release introduced in evidence, the $1,250.00 note is described as "payzable" to George T. Vickers, whereas, in the indictment it is spelled "payable." The objection to the release upon the ground of variance was overruled, and we think correctly so. The alleged variance was immaterial. Illustrations will be found in numerous cases cited by Mr. Branch in his Ann. Texas P. C., Sec. 490. Among them are the following: Eight was spelled "eiget"; drink was spelled "dring"; appropriate was spelled "appropiate"; twenty was spelled "tenty"; carnally was spelled "canally"; street was spelled "stree"; money was spelled "monet." These illustrations may be extended. See also Stuart v. State, 57 Tex. Crim. 592, wherein "strick" was used for strike; Albertson v. State, 84 Tex.Crim. Rep., wherein become in the instrument introduced was spelled "becoke"; Gill v. State, 84 Tex. Crim. 531, wherein the word corporeal was spelled "carporcal" in the indictment; Garza v. State, 87 Tex.Crim. Rep., wherein the word pistol was spelled "pistle" in the complaint and information; Coffey v. State, 82 Tex.Crim. Rep., wherein February was spelled "Reburary." It is only a material variance that is available. Underhill's Crim. Ev., 3rd Ed., Sec. 627.

The receipt of the note for $1,250.00, described in the release, was opposed upon the ground that it offended against the rule excluding extraneous crimes. The evidence shows that the note and release were delivered at the same time to Dr. Callaway; that upon the receipt of same Dr. Callaway paid $1,080.00; that the note was in fact forged by the appellant. The transactions are deemed so interrelated as not to be within the inhibition against the receipt of evidence of collateral offenses.

The fact that Dr. Callaway paid to the appellant $1,080.00 at the time of the delivery of the forged release and the forged note was, we think, properly received in evidence, as was also the letter which the appellant had written to Dr. Callaway in which he admitted that he had appropriated the check for $1,080.00 to his own use and not to the payment of the note. These matters bore upon the issue of intent of the appellant. Upon the same principle, the note for $1,250.00 which was executed by Henry Dannelly and wife to George T. Vickers, which was shown to have been the genuine note and lien upon the property described in the release, which note was never owned by either the appellant or Tubbs, we think was also properly received upon the issue of intent. Hennessy v. State, 23 Texas Crim. App., 340; Rose's Notes on Texas Rep., Vol. 5, page 615.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.