Decherd v. State , 104 Tex. Crim. 105 ( 1926 )

We quoted in our former opinion a part of Art. 1010 P. C., 1925, which lays down a legislative measure of what is necessary in an indictment for any offense set out in Chapter 2, Title 14, of said Penal Code. Under same two essential elements are specified for such indictments, viz: a reasonably certain description of the act constituting the offense, and also in connection therewith an allegation in general terms of an intent to defraud. While Art. 1006 of said P. C. names many specific acts, the doing of which constitute forgery, and names several specific intents, concluding with the general expression "or with any fraudulent intent whatever," we do not think the enumerations in said article contravene or affect the broad direction of Art. 1010 as to indictments, which is above referred to. We are still of opinion that the indictment in this case is sufficient without further allegation as to the intent of the accused.

Appellant urges that the case of Ham v. State, 4 Texas Crim. App., 645, cited in our opinion as upholding a similar indictment to the one herein, was not for any of the offenses set out in Art. 1006, supra, but for a violation of the law of uttering forged instruments, which is Art. 1008 of said 1925 P. C. While this is true, an inspection of Art. 1008 discloses the fact that after enumerating the acts of uttering or passing forged instruments therein forbidden, it says, "With the intent mentioned in Art. 1006 of this chapter, or with any other fraudulent intent whatsoever," thus making it plain that the law regarding the allegation of intent under the article whose violation was charged in the Ham case, supra, is the same as that of Art. 1006 in so far as the question of intent is concerned. If there was no need for an allegation of particular intent in the Ham case under Art. 1008, there is no need for an allegation of particular intent in the instant case under Art. 1006.

We have examined the additional authorities cited by appellant but none of them seem to be in point.

We do not think we can add to what was said in regard to appellant's objection to the admission of the alleged forged release in evidence. The original instrument is sent up with the record and to us seems clearly to evidence a case of misspelling. Same shows plainly that the maker thereof intended to write the word "payable," but struck the letter "z" instead of the second "a," and also that he first put another "a" after the letter "b" and then wrote the letter "I" upon and over said last named "a." It is also perfectly evident that the pleader wrote the date 1922 and then erased or partially erased the last figure "2" and wrote the figure "1" above it.

We think the introduction of the genuine vendor's lien note for $1,250.00, the release of which formed the subject of the forgery in the instant case, was warranted as part of the State's case in showing that the genuine note had not been paid and that no genuine release of same had been executed.

There are a number of other questions which are raised, all of which were considered on original presentation, but not deemed of sufficient materiality to call for discussion. We have found no reason to change our conclusion as reached on the original hearing, and the motion for rehearing will be overruled.

Overruled.