Cagle v. State

Appellant was convicted of uttering a forged instrument in writing, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant made a motion to quash the indictment, which was over-ruled, and he assigns this action of the court as error. The charging part of the indictment is as follows: That Len Cagle, "did willfully, knowingly, and fraudulently pass as true to Fred Fleming a forged instrument in writing to the tenor following: 'Office of Fred Fleming. Corsicana, Texas, Feb. 18th, 1895. Know all men by these presents, that I hereby release my landlord's lien in favor of Fred Fleming on 1st 6 bales of cotton of the crop of Len Cagle to be grown on 50 acres of my farm, part of the _____ survey, in the year 1895, situated 15 miles S. from Corsicana, Navarro Co., Texas. A.M. Swink,' — which said instrument in writing the said Len Cagle then and there knew to be forged, and did then and there so pass the same as true, with intent to injure and defraud Fred Fleming," etc. The grounds alleged in the motion to quash were: Because it is not distinctly alleged that said instrument was a forged instrument, and because it fails to show how or in what manner Fred Fleming, to whom it is alleged said instrument was passed, could have been defrauded. In our opinion, the first of these grounds is not well taken. Appellant's second proposition involves the question whether or not the instrument on its face, without any extrinsic averments, imports a pecuniary obligation. Our Statute (Penal Code 1895, article 530) on this subject reads as follows: "He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever." This statute is comprehensive in its terms, and is unlike the statutes of some of the other States which name particular kinds of instruments. Some diversity of opinion has existed both at common law and under statutes as to whether certain instruments — as money orders — were such on their face as to be the basis of an accusation for forgery without any extrinsic averments. A promissory note, an order for money or goods, a check or draft, where such instruments are plain on their face, it is universally held require no extrinsic averments, as they need no explanation, and show without explanation a pecuniary obligation. But sometimes, where the instrument is not clear on. its face, or is ambiguous in its terms, explanatory averments are required. Various illustrations are given on this subject in Bishop on Statutory Crimes, secs. 329, 330. Our own court follows the authorities, which give a liberal interpretation in construing these instruments; and our decisions hold that on an order for money or goods, where the instrument can by reasonable indictment be construed as an order on its face, it is not necessary to use extrinsic averments either to show the relation between the parties or any authority to draw the order. See Hendricks v. State, 26 Texas Crim. App., 176. On the other hand, where the instrument does not clearly import a pecuniary obligation, but requires extrinsic proof in order to show that it is such, it is held that the extrinsic averments must be made. See King v. State, 27 Texas Crim. App., 567; Simms v. State, 32 Tex. Crim. 277; Womble v. State, ante, p. 24; Daud v. State,34 Tex. Crim. 460. Some confusion may have arisen as to the character of pleading in which these extrinsic averments must be made. In some of the cases they are called innuendo averments. But this is not accurate, for an innuendo averment can not enlarge or point out the effect of language beyond its natural and common meaning in its usual acceptation, it being intended merely to explain or make clear the use of terms in the paper itself; while extrinsic averments are such additional allegations as show a writing, otherwise incomplete, to be such as, in connection with other allegations, is an instrument which will create, increase, diminish, discharge, or defeat a pecuniary obligation. An instrument which is invalid in its terms — that is, does not in any manner create, increase, diminish, discharge, or defeat a pecuniary obligation — may, by the use of extrinsic averments, be the basis of forgery. But if it is of such a character as that extrinsic averments will not help it at all, then it will not be the basis of forgery. "It is a general rule that any writing of such form as to be the means of defrauding another may be the subject of forgery, or alteration in the nature of forgery. But such instrument, to be the subject of indictment for forgery, must be valid, if genuine, for the purposes intended, or, if void, or invalid on its face, and it can not be made good by averment, the crime of forgery can not be predicated upon it. The general rule that the false making of an instrument void on its face is not forgery has the limitation that, where the instrument does not appear to have any legal validity, or show that another might have been injured by it, but that extrinsic facts existed by which the holder of the paper might be able to defraud another, then the offense is complete, and an indictment averring the existence of the extrinsic facts will be supported." Sec 8 Am. and Eng. Enc. of Law, pp. 478, 479. It may be considered a safe test, if the instrument is such on its face that it imports an obligation in regard to money or property, and will afford the basis of a civil action without resorting to extrinsic testimony, then a charge of forgery can be based thereon without any extrinsic averments. If the instrument is not of that character, but by the aid of extrinsic averments does create an obligation or liability with reference to money or property, then, by the aid of such extrinsic averments, it call be made the subject of forgery. Under this rule it is apparent that a promissory note, a check, draft, or order for money, plain and unambiguous in its terms, is the subject of forgery without, any extrinsic averments. If the meaning of the paper itself is not clear, but of doubtful import, then it may be given point by an innuendo, and in such case no extrinsic averment would be necessary, or, it may require both. If, however, the paper is not one of the ordinary instruments used in commercial transactions, but is contractual in form, and depends on extrinsic facts to create a liability, then it would appear that such extrinsic facts must be averred in the indictment.

Now, the instrument in question, as shown by the evidence, appears to be a release by Mrs. A.M. Swink of her landlord's lien as against Len Cagle, her tenant, on fifty acres of land in favor of one Fred Fleming, who, on the faith of such release of the lien on six bales of cotton to be grown on said fifty acres of land, paid to said Cagle $186. All these facts, it appears, had to be proven; that is, the transaction had to be made manifest to the jury by evidence of the relation of the parties, and how the contract came to be made, the consideration therefor, etc. This, we take it, had to be done in order to show that, if the instrument had been true, it created, or, more accurately speaking, discharged to that extent, or transferred to that extent, a pecuniary obligation. If Mrs. Swink had not been the landlord or lessor of Len Cagle, and no relation of that sort existed between them, then the execution of the instrument in her name, if it had been her genuine act, would not have released any existing obligation. So, in the nature of things, it was necessary for the State to prove the relation of landlord and tenant between Cagle and Mrs. Swink, before there could exist the basis of a forgery of a release by her of the landlord's lien in favor of Fleming. And what is necessary to be proven under our system of procedure must be alleged. See Code Crim. Proc. 1895, art. 440. We accordingly hold that the indictment was defective, because it did not, by extrinsic averments, show the relation of the parties so as to make it appear that the release of Mrs. Swink was the release of an existing contractual lien for rents against Len Cagle. See Dixon v. State, 81 Ala. 61, 1 So. Rep., 69; State v. Humphreys, 10 Humph., 442; State v. Martin, 9 Humph., 55; Shannon v. State, 1.09 Ind., 407, 10 N.E. Rep., 87; People v. Wright, 9 Wend., 193; Com. v. Hinds, 101 Mass. 209. Dixon's Case, supra, was much like this case; the instrument declared on being the relinquishment of a landlord's lien. The instrument was set out without any extrinsic averments. We quote from the opinion of the court as follows: "The instrument or paper, the subject of the forgery charged in this case, does not, by anything it asserts, indicate that Roberts, whose name is alleged to have been forged, had any interest whatever in the 'patch cotton' mentioned therein. Hence on the face of the instrument, it does not appear that any right or interest in property is or purports to be affected. To authorize an indictment for forgery, 'the instrument must either appear on its face to be, or be in fact, one which, if true, would possess some legal validity; or, in other words, must be legally capable of effecting a fraud.' There being nothing in the paper, as we have shown, to indicate that Roberts was in any way connected in interest with the 'patch cotton,' it required the averment of an extrinsic fact — the fact that he was landlord having an interest or lien — to show that his property interest was or would be affected. 'If a writing is so incomplete in form as to leave an apparent uncertainty in law whether it is valid or not, a simple charge of forging it fraudulently, etc., does not show an offense; but the indictment must set out such extrinsic facts as will enable the court to see that, if it were genuine, it would be valid.' 2 Bish. Crim. Law, 7 ed., sec. 545; State v. Humphreys, 10 Humph., 442." The contention that the indictment should have alleged that the cotton was then growing, we do not believe is well taken. In other words, we hold that it was perfectly competent for the landlord to take a lien on the crop on the rental of the premises, and before any crop was planted, and the lien will attach whenever the crop is in esse. The statute creates such lien, and we believe it is competent for the landlord to transfer or release such lien.

It is not necessary to discuss the other questions raised; but, because the indictment is defective, the judgment is reversed and the prosecution ordered dismissed.

Reversed and ordered dismissed.