Howell v. State , 37 Tex. 591 ( 1873 )

Ogden, J.

The seventh assignment of errors presents a question which must be decisive of this ease. The defendant was indicted under Article 2094, Paschal’s Digest, for forgery, in altering the following instrument or memorandum in writing, viz.: “ 2 hides, $4=^: Sitman.” This writing, upon its face, is evidence of no pecuniary obligation, and its alteration, by simply changing the figures, could neither increase or diminish any pecuniary obligation ; and therefore that act cannot be considered forgery under the statute.

Forgery is defined by one of the best authorities on criminal law, to be “ the false making or materially altering, with intent “ to defraud, of any writing which, if genuine, might appar- “ ently be of legal efficacy, or the foundation of a .legal “ liability.” (Bishop on Criminal Law, Vol. I., page 1008.) This definition of the crime of forgery is very similar, and in no respect in conflict with that given by our statute, and yet the same author says (Vol. II., page 506), “ when the “ writing is invalid on its face, it cannot be the subject of “ forgery.”

The instrument under consideration has no date, is addressed to no one, and on its face has no money or value for its object, and indeed has none of the requisites of an obligation, and the alteration of it could affect the legal liability of no one. The indictment charges that under, and by virtue of this writing, the defendant was authorized to demand and receive of W. G. Bandall & Brother, certain moneys. But under the law he had no right to, demand of W. G. Bandall & Brother, or any one else, any money or other property, upon the face of that instrument. There may have been an understanding between Bandall & Brother and Sitman, that they would pay on such a memorandum of Sitman, and if the'defendant, having obtained a knowledge of that understanding, has made use of it to swindle Bandall & Brother, he is punishable by indictment for swindling, but not for forgery. The court therefore erred in overruling the motion in arrest of judgment, and for which error the judgment is reversed, and the case remanded, that a proper indictment may, if thought advisable, be preferred against the defendant.

Reversed and remanded.