Chowning v. State

The offense is knowingly passing a forged instrument. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant's only contention is that the court erred in declining to sustain his motion to quash the indictment, on the ground that it failed to charge an offense, etc.

The indictment contains two counts. The first charged forgery and the second, being the one upon which he was convicted, omitting the formal parts reads as follows:

"* * * That on or about the 24th. day of December, A.D., 1936 and anterior to the presentment of this Indictment in the County of Runnels and State of Texas, W. M. Chowning did knowingly and fraudulently pass as true to Stanley Gray a forged instrument in writing to the tenor following:

"BANNER CREAMERIES, Payroll Account v No. __________

"Abilene, Texas, 12/24-1936

"Pay to the order of C. B. Rutherford $34.00 Thirty four ___________________________________________ Dollars "Banner Creameries Payroll Account By C. O. Williams

"To the "Farmers and Merchants National Bank "88-112 "Abilene, Texas

"The payee by endorsement of this check acknowledges payment as below. Void if altered. If not correct return.

"Truck 5447"

"Which said instrument in writing the said W. M. Chowning then and there knew to be forged and did then and there so pass the same as true with the intent to injure and defraud * * *."

He first takes the position that it is not charged in the indictment that the name signed to the alleged forged instrument was other than his, appellant's name. The name signed thereto was other than his. It is charged that W. M. Chowning, (which is appellant's name), did knowingly pass as true, a forged instrument which is set out in haec verba and which bears the name of Banner Creameries by C. O. Williams and which is drawn on the Farmers and Merchants National Bank of Abilene, Texas. This instrument is an ordinary draft such as is commonly used in commercial transactions and required no explanatory averments. See Dooley v. State, 21 Tex. Crim. 549; Miller v. State, 50 Tex.Crim. Rep..

His next contention is that the instrument is not such as, on its face, created a pecuniary obligation so that without any explanatory averments, it was insufficient to charge the offense. His contention seems to us untenable. The instrument was an ordinary commercial draft which, if true, would create a pecuniary obligation on the Banner Creameries and would be sufficient as a basis for a civil action. Consequently it would be good as the basis of a forgery. In the case of Dooley v. State, supra, this court, speaking through Judge Willson, said: "Our statute defines the term 'pecuniary obligation,' used in the definition of forgery. It 'means every instrument having money for its object and every obligation for the breach of which a civil action for damages may be lawfully brought.' "

It is clear to our minds that money was the object of the instrument in question. It was, in legal effect, an order by Banner Creameries upon the Farmers and Merchants National Bank of Abilene in favor of C. B. Rutherford for $34 in money. Its object was to have the bank pay to C. B. Rutherford the amount of money therein specified and if the bank had paid the money, the Banner Creameries would have been liable to the bank had the draft been genuine. In support of the views herein expressed, we refer to the cases of Gumpert v. State,228 S.W. 237; Davis v. State, 156 S.W. 1171; Morris v. State,17 Tex. Crim. 660.

Appellant also contends that the instrument, on its face, fails to disclose that C. O. Williams, whose name appears signed thereto, had authority to act on behalf of the Banner Creameries. That therefore, explanatory averments were necessary in order to show that it created a pecuniary obligation.

The test is not whether in fact C. O. Williams had such authority; it is sufficient if, on its face it appears so, and the instrument imports a pecuniary obligation and appears to be genuine. If so, it is the basis for a charge of forgery. If, however, the instrument be genuine, it would not be a forgery and consequently would not support a charge of passing a forged instrument, since it would not have a tendency to defraud. See Spicer v. State, 52 Tex.Crim. Rep.; King v. State,42 Tex. Crim. 108.

The record clearly shows that the alleged instrument was a forgery and that he knew it. He had another check in his possession, similar to the one in question, which he was about to pass to another merchant when he was apprehended and turned over to the officers.

Having reached the conclusion that the indictment is sufficient to charge the offense of knowingly passing a forged instrument, the judgment of the trial court will be affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.