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

282 S.W.2d 876 (1955)

Billy J. SMITH, Appellant,
v.
The STATE of Texas, Appellee.

No. 27710.

Court of Criminal Appeals of Texas.

October 19, 1955.

Howze & Howze, by Murray J. Howze, Monahans, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

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 injury 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, No. 430; Pye v. State, 71 Tex. Crim. 94, 154 S.W. 222.

Accordingly, the judgment is reversed and prosecution ordered dismissed.