Stork v. State , 114 Tex. Crim. 398 ( 1929 )

Quite earnestly the appellant, through his counsel, contends that in declaring that the affidavit for the search warrant wassigned by the magistrate, within the meaning of Art. 316, C. C. P., 1925, error was committed. The article mentioned concludes thus:

"That it be dated and signed by the magistrate, and directed to the sheriff or other peace officer of the proper county."

In Art. 23, Rev. Civ. Stat., 1925, it is said:

"The following meaning shall be given to each of the following words, unless a different meaning is apparent from the context:

* * *

3. 'Written' or 'in writing' includes any representation of words, letters or figures, whether by writing, printing or otherwise. * * *

6. 'Signature' or 'subscribe' includes the mark of a person unable to write."

This court, in the case of O'Bryan v. State, 27 Tex. Cr. App. 340, used the following language:

"Whilst it is declared by statute that 'an indictment is thewritten statement of a grand jury accusing a person therein named of some act or omission which by law is declared to be an offense' (Code Crim. Proc., Art. 419), still it is no objection to its validity that it is in form partly printed and partly written. The word 'writing' or 'written,' under our statutes, civil as well as criminal, includes 'printing.' (Rev. Stats., Art. 3140, subdivis. 3; Penal Code, Art. 30.)

The pertinent inquiry is not the form or the means used by the magistrate in affixing his signature, but was it his act. In the case of Mondragon v. Mondragon, 257 S.W. 215, the Supreme Court of this state, citing numerous precedents, said:

"A signature made by a rubber stamp, typewriter, or printing, or by another without authority and in the absence of the grantor, or even when forged, may be adopted, and the instrument to which it is signed become binding."

In a bill of exceptions the following is found:

"Yes, Ed. F. English, the magistrate before whom this was sworn to at the time this writ was had, was acting, qualified Justice of Peace for Precinct One, in which Cameron is situated. He is a very aged man, about 85 or 86 years old. Yes, he was very nervous when writing. Yes, I and the Sheriff, L. L. Blaylock, signed this affidavit and swore to it before him. Yes, the signatures that Mr. Wallace asked me about, Ed. F. English signed it bystencil; he applied them on the paper. Yes, I know that he used that stencil for the issuance of practically all his papers. Yes, I know why. He was so nervous he could not use pencil or pen, and cannot write."

The interpretation of the statute and the precedents cited above from this court and from the Supreme Court were not changed or modified by the Legislature in its revision of the statutes in 1925, and such interpretation is presumed in accord with the legislative intent in making the revision. Art. 28, P. C., 1925, is identical with subd. 6 of Art. 23, R. S., 1925.

The case of Wade v. State, 22 Tex. Cr. App. 256, is regarded as turning upon the intent with which the judge wrote his name. Otherwise it would be in conflict with a fixed and well-grounded rule as is illustrated by many authorities, among them the case of Price v. State, 12 Tex. Cr. App. 238, in which Judge Hurt, writing the opinion of this court, quoting from the opinion of the Supreme Court of this State, said:

"In order to bind a party to a written contract or agreement, it is not necessary that his signature should appear at the end of it. If he writes his name in any part of the agreement it may be taken as his signature, provided it was there written for the purpose of giving authenticity to the instrument, and thus operating as a signature."

The case of Wade v. State, supra, so far as we are aware, has never been followed. On the contrary, its soundness was questioned in the opinion of this court in Colter v. State,110 Tex. Crim. 12.

In the present instance, taking into account the infirmities of the magistrate as proper and embraced in the bill of exception, no doubt is entertained by the writer of the soundness of the conclusion reached and stated in the original opinion.

The motion for rehearing is overruled.

Overruled.