Womble v. State , 39 Tex. Crim. 24 ( 1898 )

Appellant was convicted of attempting to pass as true an alleged forged instrument in writing, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal.

Motion was made to quash the indictment in the court below, on the ground: "First, because it charges no offense against the statute; second, the same is insufficient, because it does not allege that said false instrument would have incurred, diminished, discharged, or defeated any pecuniary obligation, or in any manner have affected any property whatever; third, the same is insufficient because vague and uncertain, and there are no explanatory words showing the meaning of the words used in the indictment, so as to make sense of the same." The motion was overruled, and appellant reserved his bill of exceptions. The charging part of the indictment is as follows: That defendant "did willfully, knowingly, and fraudulently attempt to pass as true to H.D. Kirsch a forged instrument in writing, to the tenor following: 'May 22nd — 1897. Mr. Brin, Ples let John Womble hame ine thing that he wornt. J.O. Thompson' — which said instrument in writing the said John Womble then and there knew to be forged, and did then and there so attempt to pass the same as true, with intent to injure and defraud." The contention here is that the instrument, on its face, without explanatory averments by way of innuendo, does not import on its face such an obligation as is the subject of forgery. We think the objection well taken. Certainly, the use of the words "hame," "ine," and "wornt," should have been explained by innuendoes. More than this, in our opinion the indictment should have alleged, by a proper innuendo, the object and purpose of said order. If Mr. Brin was a merchant, and had goods for sale, this should have been alleged.

This opinion does not seem to be in exact accord with the case of Hendricks v. State, 26 Texas Criminal Appeals, 176, though the instrument in that case was in plainer terms than that upon which the forgery was predicated in this case. However, the rule here enunciated is in accord with Rollins v. State, 22 Texas Criminal Appeals, 548. In that case, however, there were innuendo averments. This is apparent from the opinion, though the indictment is not set out. See also King v. State, 27 Texas Crim. App., 567; Simms v. State, 32 Tex. Crim. 277; Daud v. State, 34 Tex.Crim. Rep.; Shannon v. State,109 Ind. 407, 10 N.E. Rep., 87; Baysinger v. State, 77 Ala. 63; Henry v. State, 35 Ohio St. 128; State v. Wheeler,19 Minn. 98 (Gil., 70).

The court did not err in refusing to permit defendant to prove the reputation of appellant as being a fool, and that he was by common reputation regarded of unsound mind. Insanity is not provable by reputation. We find no error in the charge of the court; nor was there any occasion to give the special requested charges. For the error of the court above discussed in refusing to quash the indictment, the judgment is reversed and the cause dismissed.

Reversed and dismissed.