Garner v. State , 100 Tex. Crim. 626 ( 1925 )

In his motion appellant directs attention to an error in our original opinion. We stated that in the second count it was averred that "on the back of which check there was indorsed and written L. W. Butcher." We were mistaken in this. The averment just quoted was in the first count which was not submitted. In order to make appellant's contention clear we quote the second count in the, indictment which was the only one submitted:

"And the grand jurors aforesaid upon their oaths aforesaid do further present in and to said court that J. H. Garner, on or about the 21st day of April, A.D., 1922, and anterior to the presentment of this indictment, in the County and State aforesaid did then and there unlawfully and knowingly pass as true to C. L. Aldrich, a forged instrument in writing of the tenor following:

88-1003

CLEVELAND STATE BANK of Cleveland

Cleveland, Texas, April 21, 1922 No. _____

PAY TO THE ORDER OF __________ L. W. Butcher __________ $15.00 fifteen and no hundredths __________ Dollars.

G. H. Garner.

"Which said instrument in writing the said Garner then and there well knew to be forged and did then and there so pass the same as true with intent to injure and defrand. And upon theback of which check the said Garner then and there wrote andendorsed the name 'L. W. Butcher'."

The contention is that the last sentence which we have italicised, rendered said second count duplicitous in that it charged in one count the passing of a forged instrument, and also forgery in averring that appellant wrote the name of "L. W. Butcher" upon the back of said check. If is be true that the, pleader did charge in one count both forgery and passing a forged instrument, there having been no motion to quash the indictment because of such alleged defect, the question was raised too late when presented by motion in arrest of judgment. Nelley v. State, 93 Tex.Crim. Rep., 248 S.W. Rep. 367; Kocich v. State, ___ Texas Crim. Rep. ___, 249 S.W. Rep. 494; Lumus v. State, ___ Texas Crim. Rep. ___, 250 S.W. Rep. 425; Brown v. State, ___ Texas Crim. Rep. ___, 257 S.W. Rep. 891. However, we are not in accord with appellant in his contention that the second count charges forgery. A complete charge of passing a forged instrument is contained in said count without reference to the last sentence. If forgery was attempted to be charged in the last sentence, the pleader omitted the vital allegation that the name of "L. W. Butcher" was written without lawful authority and with intent to injure and defraud. Forgery is not charged at all in said second count, and the sentence italicised might well be treated as surplusage.

We entertain no doubt that we were correct in holding the evidence of the witness Love to have been properly admitted.

The motion is overruled.

Overruled.