Kennedy v. State , 33 Tex. Crim. 183 ( 1894 )

Appellant was charged with, and convicted of, forging the following instrument:.

"$45.00. "HARRISON COUNTY, TEXAS, Jan. 29, 1892.

"Pay to L.C. Kennedy, or order, the sum of forty-five ($45.00) dollars out of the public school fund apportioned to the _____ School Dist. No. 13, for services as teacher in the public free schools in said community for the month ending the 29th day of January, 1892.

"To County Treasurer, _____ County, Texas.

"(1) J.C. HARCROW, "(2) J.W. GORMAN, "3 _____ _______, "Trustees of School District No. 13, in Harrison Co., Texas."

Motion to quash was made because the indictment charges no offense. The particular defect or defects are not sought to be pointed out. We are informed, through brief of counsel for the State, that the contention is that the voucher not being directed to any person, is not the subject of forgery. Whether being generally addressed to the "Treasurer" is sufficient or not, we take it, is not of great importance. The law points out the treasurer as the party who shall pay school vouchers such as the one in question. Whether named or not, the treasurer is the party who is legally required to pay the voucher. It does not affect the validity of the instrument that his name be omitted. Instruments of writing may create pecuniary obligations, affect property in some manner, and be the subject of forgery, without being directed or addressed to any particular person. This question was fully investigated in the unreported case of Dixon v. The State (decided by the Court of Appeals of Texas at its Austin Term, 1889, opinion by White, P. J. 26 So. W. Rep., 500.) In Roscoe's Criminal Evidence it is said: "The prisoner was indicted for uttering a forged instrument for the delivery of goods, in words and figures following: 'Gentlemen: Be so good as to let bearer have 5 1/2 yards of blue to pattern, etc., and you will oblige W. Reading, Mortimer St.' The request was not addressed to any one. The prisoner being convicted, the recorder respited the judgment, to take the opinion of the judges on the question whether, as the request was not addressed to any individual person by name or description, it was a request for the delivery of goods, within the words and true intent of the statute. All the judges who were present at the meeting held the conviction right." Rose. Crim. Ev., 555, 556, 583; Rex v. Carney, 1 Moody Crim. Cas., 351. In Reg. v. Pullbrook, 9 Carrington Payne, 37, the judges held, that an instrument merely specifying the goods may be shown to be a request by the custom of the trade. See Reg. v. Rogers, Id, 41; Reg. v. Snelling, 1 Dears. Crim. Cas., 219. In Snelling's case, supra, the following instrument was held to be the subject of forgery, though addressed to no one: "Sirs: Please to pay to the bearer, Mrs. J., the sum of 854l. 10s. for me. James Ramsey." In Noakes v. The People, 25 New York, 382, it was said: "It is insisted on by the counsel for the prisoner, in, support of the first request, to charge that the instrument set out in the indictment is not upon its face the subject of forgery, as it is not addressed to any one. If it be essential that an order or request for delivery of goods, to make it the subject of forgery, should on its face be directed to a particular person, there then would doubtless be force in this objection. A reference to the language of the section of the statute would seem to indicate that there is not much force in this argument. * * * The paper under consideration would therefore seem to fall within the very words of the statute, and is precisely of that character which the Legislature, by the forgery of and the passing or uttering of which, intended to subject the offender to indictment and punishment." Over objection that it was addressed to no one, the following order was held in Tennessee to be the subject of forgery: "May: Let Lorie Rogers have nineteen (19.00) dollars in goods, and charge to me. W.C. Pell." Peete v. The State, 2 Lea, 513; Whart. Crim. Law, secs. 680-695. Mr. Desty says: "An order is subject of forgery, as an order for payment of money, though no consideration be expressed; and a writing not addressed to any particular person may be an order for the payment of money;" and further, that "an order for the delivery of goods is subject to forgery although not addressed to any one, or a request to deliver goods to bearer. "Desty Crim. Law, pp. 606, 607, sec. 150, and notes 1-3, for numerous cited authorities; The State v. Bauman (Iowa), 2 N.W. Rep., 956. See also Hendricks v. The State, 26 Texas Crim. App., 179; Dovalina v. The State, 14 Texas Crim. App., 324. If the instrument affects property, it is the subject of forgery. Alexander v. The State, 28 Texas Crim. App., 186. In the case before us, whether the instrument was or was not addressed to the treasurer of Harrison County is not material — does not affect the validity of the document. The law directs that officer to pay such vouchers, and when the voucher is signed by the trustees, as directed by the statute, it is by law addressed to the treasurer of the county in which is situated the school district. We are now speaking of those school districts which are not independent districts. The treasurer only holds the money subject to the legal and proper order of the trustees of the respective school districts of his county.

Under the one general ground of the insufficiency of the indictment to charge an offense we have discussed this question. It is to be regretted that questions of such gravity are not particularly pointed out by parties desiring their determination, and the authorities relied on by them furnished this court. It would tend greatly to expedite the work of deciding cases on appeal, as well as to accuracy and correctness of decision. We are left but too often to grope through general questions, very generally stated, without assistance from counsel to ascertain the real point at issue. This should not be so. The particular question should be distinctly pointed out and specified.

By bill of exception it is urged that there is a variance between the allegations setting forth the defendant's name and the proof adduced to support it. It is contended the original voucher shows the name to be D.C. Kennedy, whereas the indictment alleges it to be L.C. Kennedy. If the original voucher could be considered, we are of opinion, upon inspection, it shows no variance. The indictment copied the name as nearly as possible asset out in the original. But it can not be considered, because not identified as the original voucher nor certified to by the clerk. Where original papers are ordered to be sent up with the transcript they should be forwarded with the transcript, and their identity verified by proper certificate of the clerk, and separately from the transcript. Carroll v. The State, 24 Texas Crim. App., 313; The State v. Morris, 43 Tex. 372.

As the record is presented to us, we are of opinion the judgment should be affirmed, and it is so ordered.

Affirmed.

Judges all present and concurring.