Jessup v. State , 44 Tex. Crim. 83 ( 1902 )

The indictment contains two counts. The first count charges forgery, and the second charges appellant with uttering and passing said forged instrument. Appellant was convicted under the second count, and given five years in the penitentiary.

Appellant assigns a number of errors, but in the view we take of the case it is only necessary to consider the assignment which raises the question of venue, and goes to the jurisdiction of the court which tried the case. This prosecution was in the Criminal District Court of Harris County, Texas. The evidence shows without controversy that the alleged forged check or draft, which is in the following form:

"$250.00. HOUSTON, Tex., Jan'y 23rd, 1901.

"At sight pay to the order of Chas. Jessup Two hundred and fifty no-100 Dollars, with exchange value received and charge same to account of

"G.B. JOHNSON.

"To Citizens Bank, Prescott, Ark.

No. __."

was placed in the United States mail at Houston, and in a letter addressed to the Citizens Bank, at Prescott, in the State of Arkansas, which draft was indorsed on the back, "Chas. Jessup." That it and accompanying letter was received by J.S. Regan, cashier of the Citizens Bank at Prescott, Ark., and that he issued exchange, as requested in the letter, on the Chase National Bank of New York for $249.50, which was the amount of the draft, less 50 cents for exchange, and inclosed and mailed it to defendant's address at Houston, Texas. That G.B. Johnson, the alleged signer to the draft, lived in Arkansas, and had an account with the Citizens Bank at Prescott. On this state of facts, the question thus presented is, did the District Court of Harris County have jurisdiction of the offense of uttering said instrument?

We have a statute with reference to the venue in cases of forgery, authorizing the prosecution for said offense in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed; and then follows a provision with reference to venue in the prosecution of forgeries of land titles. Art. 225, Code of Crim. Proc. Of course, this does not apply. Nor do articles 230 or 232, Code of Criminal Procedure. The first relates to an injury inflicted within the State, of which the injured person dies out of the State; and the latter article, to the venue of an offense committed on any river or stream, the boundary of the State. The venue of this offense must be governed by article 246, Code of Criminal Procedure, which provides: "In all cases, except those enumerated in the previous articles of this chapter, the proper county for the prosecution of the offense is that in which the offense was committed." The charge here of which appellant was convicted was not the forgery of the instrument; he was acquitted of that; but the jury convicted him of uttering the alleged forged instrument; that is, of passing it as true. Did he pass it in Harris County, Texas? We are not advised that this question has been before the courts of this State; but it has undergone judicial investigation in a number of other States. In a few jurisdictions the courts appear to hold that the jurisdiction is in the county in which the forged instrument was sent or mailed. United States v. Wright, 2 Cranch (C.C.), 296; United States v. Plympton, 4 Cranch, 409; United States v. Bickford, 4 Blatch., 337; Wharton, Crim. Law, sec. 711; 8 Am. and Eng. Enc. of Law, p. 522. But in the great majority of cases and by the overwhelming weight of authority, the offense of uttering is not complete until the paper is negotiated, that is, actually passed, and as long as it is in the party's hands, or in charge of his innocent agent, there is no uttering. People v. Rathburn, 21 Wend., 509; Bishop v. State, 30 Ala. 40; Lindsey v. State, 38 Ohio St. 511; Commonwealth v. Searle, 2 Binnie (Pa.), 332; Foute v. State, 15 Lea (Tenn.), 712; State v. Hudson, 13 Mont. 112. The cases of Johns v. State, 19 Ind. 421, and State v. Chapin, 17 Ark. 561, have been cited as against the general doctrine; but an examination of these cases, in our opinion, does not militate against the authorities cited supra. They were both cases in which the question of venue figured where the act was consummated through a guilty agent and the parties stood as accessories in relation to the crime. For other authorities bearing on the question, see 13 Am. and Eng. Enc. of Law, p. 1107.

We hold, in accordance with what seems to us the better reasoning, and supported by the greater weight of authority, that the draft in question was not passed or uttered, but was still in the hands of appellant, through his innocent agent, the United States mail, until it reached its destination at Prescott, in the State of Arkansas; and when it was received and negotiated (that is, paid), it was for the first time passed or uttered; and that accordingly the venue of the offense was not in Harris County, Texas, and the Criminal District Court of said county did not have jurisdiction thereof.

The judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.

[The State's motion for rehearing was overruled without a written opinion. — Reporter.]