Smith v. State , 162 Tex. Crim. 132 ( 1955 )

DAVIDSON, Judge.

This is a conviction for forgery, with punishment assessed at two years in the penitentiary.

Under the statute, Art. 979, P.C., an essential element of the crime of forgery is the making “without lawful authority” of a false instrument in writing, purporting to be the act of another, with the intent to injure or defraud.

The instant indictment contains no allegation that the check described therein, which, upon its face purported to be the act of another, was made “without lawful authority.”

The absence of such allegation renders the indictment fatally defective. Branch’s P.C., Sec. 1403, p. 856; Willson’s Criminal Forms, #430; Pye v. State, 71 Texas Cr. R. 94, 154 S.W. 222.

Accordingly, the judgment is reversed and prosecution ordered dismissed.