Adkins v. State

DAVIDSON, Presiding Judge.

Appellant Vas convicted of forgery, and his punishment assessed at two years confinement in the penitentiary.

' The indictment contained four counts, charging forgery, uttering a forged instrument, and having in possession a forged instrument with intent to pass it. The court submitted the first count in his charge to the jury, omitting the remaining three. This was proper.

The instrument was set out according to its tenor, as follows:

“$11.75. Gainesville, Texas, June 8th, 1899.

“Ninety days after date, for value received, promise to pay to Ed Liedtke or order eleven and 75/100 dollars, at his office in Gainesville, to bear interest at the rate of 10 per cent per annum from date; and further hereby agree that, if this note is not paid when due, to pay all cost necessary for collection, including ten per cent, for attorney’s fees.

“Due Sept. 8th.

“(Signed) C. J. Stuard.”

The note introduced in evidence was as follows:

“$11.75. Gainesville, Texas, June 8th, 1899.

“Ninety days after date, for value received, promise to pay to Ed Liedtke or order eleven and 75/100 dollars, at his office in Gainesville, to bear interest at the rate of 10 per cent per annum from date; and further hereby agree that, if this note is not paid when due, to pay all cost necessary for collection, including ten per cent, for attorney’s fees.

“Due Sept. 8th.

“(Signed) C. J. Stuard.

“C. J. Stuard, Era.”

It is claimed there was a variance in this; that the instrument declared on has the name “0. J. Stuard” only once, whereas that offered in evidence has it twice, followed by the name “Era.” As shown in the bill of exceptions reserved to the action of the court overruling the demurrer to the evidence, the words “C. J. Stuard, Era,” were written below the note, and were not a part of the note. We do not understand this constitutes a variance. “Era” is the neighborhood in which he lived, as stated by him to the witness Liedtke at the time of the execution of the note. If this was simply a memorandum written by the witness Liedtke at the time, it did not form a part of the note, and it was not necessary to set it out in the indictment, and would therefore constitute no variance.

It is contended the court should bave sustained the demurrer to the evidence. We do not agree to this contention. The fact that the note was executed by defendant in the presence of Liedtke, and given in consideration of the purchase price of some clothing bought of Liedtke, would render it none the- less forgery. He signed a name that was not his own to the note, stating at the time he lived at Era, some distance away from the town of Gainesville, the place of the execution of the note, when in fact he lived in the northern portion of said town. His name was unknown to Liedtke, except as stated by appellant and as signed to the note. It would make no difference whether he signed it in the presence of Liedtke or not. If the name was the name of another, or fictitious name, and -the note was signed with intent to defraud, it would be forgery, and the evidence, as we understand it, shows a fraudulent intent.

[Hote.—Appellant’s motion' for rehearing filed March 13, 1900, was overruled without a written opinion.—Reporter.]

The court did not copy the statute in his charge. Appellant embodied it in a special charge, and requested it to be given to the' jury, which, was refused. The court’s charge, however, submitted all the constituent elements of the crime of forgery, and this was a sufficient definition of the offense. It is not necessary to copy the statute, if all the-essential ingredients and elements of the offense are stated in the charge. We- think the charge is sufficient in regard to this matter. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.