Daud v. State , 34 Tex. Crim. 460 ( 1895 )

The appellant in this case was convicted for the offense of passing as true a forged instrument in writing, with intent to defraud. The appellant made a motion to the court below to quash the indictment, on the ground that same sets out an instrument of no legal force or effect whatever, and attempts to make said instrument effective by averments of extrinsic facts in no way suggested by said instrument, and without charging this defendant with knowledge of such facts, and because said instrument, as set out in the indictment, does not, by its terms, figures, and marks, appear to be that which by the allegation of said purport clause it is made to be The instrument which the defendant is charged to have uttered is as follows: "July 22, 1894. This is a correct statement of D.H. Daud's time for work done on section 4 in the month of July: Days worked, 14; board due, $6.50; balance due, $8.15. F. Thompson, Section Foreman." Then follow explanatory allegations in the indictment showing that same purported to be the obligation of the Texas Central Railway Company, and was signed by one Thompson, as the agent of said company; that it was the usage and custom of said company to execute through its agents an obligation on which employes were to receive their pay from the proper agent of the company. It is further alleged by innuendo, stating the meaning of the terms used in said instrument, as follows, to wit: "(1) By the expression, 'This is a correct statement of D.H. Daud's time for work done on section 4 in the month of July,' that it is a true and correct statement of the time worked by said D.H. Daud, alias Dan Jones, as a section hand, under F. Thompson, as section foreman of section 4 of the Texas Central Railway Company in the month of July, 1894; (2) by the expression, 'Days worked, 14,' is meant that the said D.H. Daud, alias Dan Jones, had actually worked on section number 4 of said railroad fourteen days for said Texas Central Railroad Company; (3) by the expression, 'Board due, $6.50,' that the said D.H. Daud, alias Dan Jones, was due some one with whom he had been boarding the sum of $6.50, which was to be deducted out of the amount due him from said Texas Central Railway Company for the purpose of paying said board; (4) by the expression, 'Balance due, $8.15,' that the amount to be paid to said D.H. Daud, alias Dan Jones, by said Texas Central Railway Company for his said fourteen days' work, after deducting his said board bill, is the sum of $8.15; (5) by the expression, 'F. Thompson, section foreman,' that F. Thompson, the section foreman of said section 4 of the said Texas Central Railway Company, had signed same in his official capacity as the section foreman of said section number 4 of the said Texas Central Railway Company and thereby creating a pecuniary liability on said railway company for the amount mentioned in said instrument or time check." The court overruled the motion to quash, and the defendant now assigns the action of the court as error.

If the instrument is absolutely and everywhere inoperative, without certain formalities, then falsely to make or utter it is not forgery. This is illustrated in the case of a will. Where the statutes require so many witnesses to sign in order to make the will operative, unless the required number of witnesses appear to have signed the will the same is not the subject of forgery. But if it is such an instrument as can be made good by explanation or innuendo, and so explained will import an obligation, if valid, it is the subject of forgery. Mr. Bishop says: "Whether a particular writing is sufficient on its face may be a question of difficulty. If the writing is so far incomplete in form as to have an apparent uncertainty in law, whether it is valid or not, it does not follow that it may not be the subject of forgery. In such a case the indictment must allege such extrinsic facts as will enable the court to see that if it were genuine it would be valid." Now, the instrument in question does not show on its face whose obligation it is intended to be, but this is made certain by the averment as to the usage and custom of the Texas Central Railway Company in paying off its hands; that F. Thompson was section boss of section number 4, and was authorized to keep the time of the employes, and to draw in favor of such employes an obligation of this form, which was intended to secure their pay. It is shown, furthermore, that D.H. Daud was entitled to pay for fourteen days' work done for said Texas Central Railway Company, which was to be credited by $6.50 that he was due for board, and that the balance due him by said company was $8.15; and that an instrument in that form authorized the person to whom it was executed to present same to Texas Central Railway Company or its agent, and receive the balance due him. This instrument, so explained, was of such a character as to import an obligation — an instrument which, if true, would authorize the owner thereof to maintain a civil suit for work and labor done for said company — and in our opinion, was the subject of forgery, and, as such, capable of being uttered as a forged instrument. Rollins v. The State, 22 Texas Crim. App., 548; Hendricks v. The State, 26 Texas Crim. App., 176; King v. The State, 27 Texas Crim. App., 567.

Nor did the court err, in our opinion, in admitting testimony of witnesses to prove the innuendoes and explanations as alleged.

The court should have charged the jury that the instrument, as explained, was the subject of forgery; but the charge in that regard, while not telling them so in direct terms, assumed that it was the subject of forgery, and we see no error in this respect injurious to the defendant.

The court's submission to the jury, in a subsequent portion of the charge, of the question to find whether or not said instrument imported a pecuniary obligation, and to acquit the defendant if they believed it did not, was certainly more liberal than the defendant could have asked; and though error, it was not such as injured the rights of defendant.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.