Carder v. State , 35 Tex. Crim. 105 ( 1895 )

The appellant in this case was convicted of forgery, and his punishment assessed at confinement in the State penitentiary for a term of two years. The alleged forged instrument is set out in several counts, but, as same is set out with but slight verbal variances, it will only be necessary to quote one of said counts in order to present the assignments in the case: "Said false instrument cannot be set out in haec verba, for the reason that the same is in the possession of the defendant, but said false instrument is, in substance, as follows, to-wit: 'We, the undersigned, promise to become members of the State's Business Men's Association of Texas, and promise to pay to said association ten dollars each for one year membership in said association, for the purpose of protecting our business and advancing our mutual interest, providing all the first-class merchants in Henrietta, Texas, will sign this agreement, and become members of said association,' which said false instrument would, if the same were true, have created a pecuniary obligation, etc." The appellant contends in this case that the said instrument, on its face, as set out, does not import a pecuniary obligation, or, if it does, that said pecuniary obligation is conditioned on the signature of all the first-class merchants in Henrietta, Texas. It is a rule, in setting out the charging part in an indictment for forgery, that, if the written instrument declared upon as a forgery is so incomplete in form as not to import a legal liability, then, to sufficiently charge forgery upon it, the indictment must allege such facts as will invest it with legal force, and show that, if genuine, it would create a legal liability, and such facts are set forth by appropriate innuendoes. If it be conceded that the instrument in question was the subject of forgery, then it shows upon its face that it would only create a complete legal liability when the same should be signed by all of the leading merchants in Henrietta. On its face, it is clear that no one was required to pay the $10 subscription until all of the leading merchants of said place should have signed said instrument; and the indictment should, by appropriate innuendoes, have averred such facts as completed the instrument, and made it create a legal liability against those signing it. From the face of this indictment, it appears that the organization of the State's Business Men's Association of Texas did not become completed until all of the leading business men of Henrietta should have signed the instrument in question, and then each member was liable to pay the sum of $10 for one year membership. It is possible, by appropriate averments, that an instrument of this character might be the subject of forgery, but such averments were not set out in this case. See Anderson v. State, 20 Tex.Crim. App., 595; Hendricks v. State, 26 Tex.Crim. App., 176; King v. State, 27 Tex.Crim. App., 567. From the record before us it appears that by the use of this instrument, or one nearly similar thereto, in connection with defendant's representations, he obtained money, in sums of $10, from certain parties of Henrietta; and it appears to us that the transaction was more in the nature of obtaining money under false pretenses, than forgery. We would observe, further, that the beneficiary, as shown in said instrument, is the State's Business Men's Association of Texas. What this was — whether a copartnership, a joint-stock company, or corporation — should have been shown. For the errors discussed the judgment is reversed and the cause remanded.

Reversed and Remanded.