Costley v. State , 14 Tex. Ct. App. 156 ( 1885 )


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  • White, Presiding Judge.

    There can be no doubt but that a bail bond, executed for the appearance of a party to answer before the proper court an accusation against him of an offense against the law, is a pecuniary obligation to the State, binding upon him and his sureties, and is one which, by the very terms of the law permitting it, can be enforced in case of a breach of its conditions. (Code Criminal Procedure, Arts. 282, et seq., and Arts. 400, et seq.) If an instrument in writing which creates a pecuniary obligation is a subject of forgery, then a bail bond is also such an instrument as may be the subject of forgery. (Penal Code, Art. 435; Com. v. Linton, 2 Va. Cases, 476.) It is not necessary that a bail bond should have been forfeited or attempted to be forfeited before it is the subject of an assignment and prosecution for forgery, for “ an instrument falsely made with intent to defraud is a forgery, although, if it had been genuine, other steps must have been taken before the instrument would have been perfected, and these steps are not taken.” (Com. v. Costello, 120 Mass., 358.)

    As contended, it is true that the rule is well settled that “ a written instrument, to be the subject of indictment for forgery, must be valid, if genuine, for the purpose intended. If void or invalid on its face, and it cannot be made good by averment, the crime of forgery cannot be predicated upon it.” (People v. Harrison, 8 Barb., N. Y., 560.) “It is an indispensable element in the crime of forgery that the forged paper must be such that, if genuine, it may injure another, and it must *161appear from the indictment that it is legally of such a character, either from a recital or description of the instrument itself, or, if that alone does not show it to be so, then by the additional averment of such extrinsic facts as render it of that character.” (The State v. Briggs, 34 Vermont, 501.) “The forging of an indictment which, on its face, is void, is not indictable.” (People v. Shall, 9 Cow., 778; Henderson v. The State, 14 Texas, 517.)

    It may further be considered as well settled that “if a statute authorizes an instrument and so prescribes its form as to render any other form null, forgery cannot be committed by making an instrument in form not provided by the statute, even though it is so like the genuine as to be liable to deceive most persons.” (Cunningham v. People, 11 S. C. (4 Hun.,) N. Y., 455.)

    Article 288, Code Criminal Procedure, prescribes all the requisites of a good and sufficient bail bond under our statute, and a bond containing all the requisites therein enumerated is valid and sufficiently certain to effect the purposes it is intended to subserve. When tested by the provisions of the statute, we find the bond as set forth in the indictment in the case before us to be in strict compliance with its terms, and nothing more can be demanded to make it good.

    But it is said that a bail bond, to be valid, must have been executed to effect the release of a party from custody or imprisonment who is at the time under legal arrest, charged with an offense; that this is the object and purpose for which a bail bond is allowed; and that, unless it is shown that the principal ill IaiO bond was in arrest upon some charge of crime, then the bond is a nullity and cannot be insisted upon for any purpose whatever, much less as a basis for the assignment of forgery. That, it being necessary to show an arrest, the fact that the party was under arrest when the bond was executed must be distinctly and affirmatively averred and alleged in the indictment, since “ everything should be stated in the indictment which it is necessary to prove.” (Code Crim. Proc., Art. 421.)

    We think the fact of arrest and custody is sufficiently alleged in the indictment; for the allegation is that the forged bail bond was “for the purpose of securing the release of said Henderson from the custody of the duly authorized officers, as if on bail to answer said charge of theft,” etc. And again in the forged instrument, which is set out hoec verba in the indictment, it is recited that, “whereas the above bounden Jim Henderson was this day arrested by T. R. Johnson, deputy sheriff of Travis *162county, charged with theft of property under the value of twenty dollars, now, therefore,” etc. Upon this point the indictment is sufficiently explicit.

    Other objections to the indictment are more hypercritical than substantial. The indictment is, in our opinion, good, and the court did not err in overruling defendant’s motions to quash and in arrest of judgment, based upon its supposed defects.

    We see no error in the charge of the court, nor in the refusal to give the special requested instructions.

    As to the evidence, there can be no question. In addition to the facts proven establishing his guilt, defendant, though duly warned of the consequences of his act, on his trial, in open court and in writing, submitted to the court and jury his admission and confession that he did the acts in manner and form described in the indictment.

    We have been unable to see that any error was committed upon the trial of this case, and the judgment is therefore affirmed.

    Affirmed.

    Opinion delivered May 5, 1885.

Document Info

Docket Number: No. 2682

Citation Numbers: 14 Tex. Ct. App. 156

Judges: White

Filed Date: 5/5/1885

Precedential Status: Precedential

Modified Date: 9/3/2021