Thurmond v. State , 25 Tex. Ct. App. 366 ( 1888 )

Willson, Judge.

Exceptions to the indictment were properly overruled, as the indictment follows the statute, and is in accordance with precedents. (Penal Code, article 443; Johnson v. The State, 9 Texas Ct. App., 249; Wharton’s Prec., 315, 316.)

Upon the trial defendant requested the court to instruct the jury as follows: “Knowingly passing as true such forged instrument as described in the indictment is putting such forged instrument off in payment or exchange. Pledging, however, such instrument in writing, to be redeemed at a future day, is not a passing within the meaning of article 443 of the Penal Code, under which defendant is being tried. The forged instrument alleged to have been knowingly passed as true purports to be what the law terms a negotiable bill of exchange, and which is negotiable in law only by the indorsement of the payee, that is, by the party to whom the bill is made payable, which is done by the act of the payee writing his name' across the note, and the like, which, when done by the payee and delivered to the purchaser for a valuable consideration, passes the legal title to the purchaser, and without such indorsement no legal title to the bill can pass to the purchaser. And, though you may believe from the evidence that the written instrument described in the indictment was a forged written instrument, and that the defendant pledged the same to George Herder with an understanding that it was to be redeemed at some future day by him, it is not knowingly passing as true a forged instrument in writing within the meaning of article 443 of the Penal Code, and you will acquit the defendant.” Said instruction was refused by the court, and defendant excepted.

Opinion delivered May 2, 1888.

It can not be questioned that the instruction would have been applicable to the evidence. We are of the opinion, however, that it is not the law, and was properly refused. It has been held in one case, by a divided court, that a mere pledge of a written instrument was not a passing of it. (Gentry v. The State, 3 Yerger, 451.) The opinion in that case cites no authority and advances no reason for its support, merely declaring that pledging a note is not passing it, within the meaning of the statute. Mr. Bishop, in his work on Statutory Crimes, questions the correctness of the decision, and suggests that there is no difference in principle between passing a thing in pledge and giving it in conditional payment. (Sec. 308.) We agree with Mr. Bishop. We can see no difference in principle between pledging a note as security for the payment of a debt, and delivering it in payment of a debt with the agreement that it should be taken back if it proved to be not genuine. . (Perdue v. The State, 2 Humphries, 494.)

We think that, to constitute the offense defined by article 413 of the Penal Code, all that is required is that a person, knowing that an instrument in writing is a forgery, deliver it to some other person as true and genuine, with the intent to thereby injure or defraud. It matters not, we think, that the complete legal title to the instrument does not pass by the delivery. The instrument itself is passed; its possession is changed, and this change of possession, accompanied by a knowledge on the part of the accused that it is a forged instrument, and by the intent on his part to defraud, constitutes the crime as completely as if the legal title to the note passed with the possession thereof. In the case before us the defendant delivered the note to Herder as security for the payment of the price of merchandise purchased by him of Herder. He delivered the note to Herder as a true note, and as such Herder received it, and delivered the merchandise. The evidence sufficiently shows that the note was forged, and that the defendant, at the time he delivered it to Herder, knew that it was forged. As we view the case, there is no error in the conviction, and it is affirmed.

Affirmed.