Chimene v. State , 133 Tex. Crim. 43 ( 1937 )

In his motion for rehearing appellant seems to lay down the proposition that nothing in the alleged forged receipt shows the connection the different parties had with said receipt; also that said receipt was of doubtful import, and dependent on extrinsic facts to create or discharge a pecuniary obligation; that same is based on a future contingency, and that there are no extrinsic averments of these matters in the indictment. We confess our inability to see why there should be extrinsic averments of these matters in the indictment.

The alleged forged receipt is set out at length in our original opinion, and therefrom it appears that, if genuine, — the document plainly stated that on December 21, 1935, Stash Novark had paid to S. M. Taylor $24.00 in money, receipt of which Taylor acknowledged in writing. It is true that in said writing, in addition to what is above set out, we find the following: "Upon this application to Southern Union Casualty Company, Houston, Texas, which amount I agree to refund in the event said application is rejected. Please notify the office if policy is not received within ten days. Policy is not valid until delivered while insured is alive and in sound health. Paid to Jan. 26, 1937. (Signed) S. M. Taylor, Solicitor."

It is in evidence and not disputed that this appellant in December, 1935, was working for the Southern Union Casualty Company, and, according to the testimony of the secretary of said concern, Mr. Cowling, — appellant was authorized to take applications for insurance and collect from the applicants the first payment on the policy applied for, and to give receipts therefor on forms furnished him, a copy of which form was in evidence, and shows to have printed thereon all the matters last above set out, except the words "Paid to Jan. 26, 1937," and the name S. M. Taylor. Appellant as a witness admitted that he and one Templeton, who was also working for said company, went to see Stash Novark on the occasion in question, and that before they reached Novark's place Templeton said to him "You are Mr. Taylor and my name is Johnson." In talking to Novark, appellant told him the company would knock off ten per cent and he himself would knock off the same amount if Novark would pay the annual premium on his policy in advance, and to this Novark agreed, and witness wrote out the receipt the way it was, and collected the discounted premium from Novark. This premium was admittedly on a policy already in existence. It was not a payment on a new policy. Appellant filled out the receipt and signed to same the name S. M. Taylor, and wrote at the bottom "Paid to Jan. 26, 1937." If we understand appellant's testimony he kept and spent the money he collected from Novark. The check written by Novark, for which the receipt was written, was made out to S. M. Taylor, and on the back of same bore the endorsement of S. M. Taylor, both of which appellant admitted were written by him.

The instrument alleged to have been forged being set out in haec verba, it was not necessary to aver its legal effect, or that it would have to have this, that or the other bearing on the parties named therein. None of its words are ambiguous. It plainly imports a legal liability, and plainly is a document affecting money and property, and does not seem to need any innuendo averments. Carder v. State, 35 Tex.Crim. Rep.; Reeves v. State, 51 Tex.Crim. Rep.. There was no need for any averment as to whether the company referred to was a corporation. Townser v. State, 79 Tex.Crim. Rep.; Martin v. State, 85 Tex.Crim. Rep.; Wisdom v. State,122 Tex. Crim. 271.

That the printed part of the alleged forged receipt appeared to relate to an application for the issuance of a new policy, seems to us a matter of no materiality in determining the question of appellant's guilt in this case. There was no occasion for investigating or determining the relation of any of the parties to each other, and no issue before the trial court herein upon which said printed matter shed light. Appellant was not specifically charged with writing this printed matter, and clearly understood that he was not. The court was not called upon to determine any rights between parties. The only question was whether or not appellant signed to said document the name of S. M. Taylor, and wrote in it the amount of money for which he was giving a receipt.

We have read with interest the motion of appellant, and have examined the many authorities cited therein, but believe none of them have any application here.

The motion for rehearing is overruled.

Overruled.