Gumpert v. State , 88 Tex. Crim. 492 ( 1921 )

Conviction is for passing a forged instrument and punishment fixed at confinement in the penitentiary for a period of two years.

The instrument declared on was set out in the indictment thus:

"Italy, Texas, July 31, 1920. No. "The First National Bank 88-665 Pay to Bearer "Roy Miller $15.85 fifteen and 85/100 Dollars " S.L. Morgan" "endorsed on the back thereof "Roy Miller"

It was charged that the appellant

"did wilfully, knowingly and fraudulently pass as true to one Jodie Brooks a false and forged instrument in writing which had theretofore been made without lawful authority and with intent to defraud; and was then of the tenor following . . . and which said instrument in writing, the said L.W. Gumpert, then and there well knowing to be false and forged, he the said L.W. Gumpert did pass the same as true, with intent to injure and defraud."

In the motion to quash and in arrest of judgment the indictment was assailed upon various grounds, none of which, in our opinion, were sound. The check, being an ordinary commercial instrument, no purport clause was necessary. Howard v. State, 37 Tex. Crim. 494; Branch's Criminal Law, Sec. 379. The check was complete without the endorsement. Branch's Ann. Tex. Penal Code, Sections 1397 and 1409; Hennessy v. State, 23 Texas Crim. App., 354; Bishop's New Crim. Procedure, Vol. 3, Sec. 410.

No attempt was made to charge that the instrument had been altered by making thereon a false endorsement. Strang v. State, 32 Tex.Crim. Rep.; Carter v. State, 55 Tex. Crim. 46.

The instrument which was the subject of the forgery, under the allegations, was a check. In alleging that it bore the endorsement "Roy Miller" the pleader put upon it an unnecessary descriptive averment, but did not thereby render the indictment bad. Passing a check which was known to be forged and which was passed with fraudulent intent, would constitute an offense whether the endorsement be forged or genuine. It is possible that, in describing the check as being endorsed in the manner stated, an unnecessary burden was assumed by the State to prove that the forged check passed bore the endorsement mentioned. This question, however, does not arise. The statute denouncing the passing of a forged instrument is not susceptible of the construction that a conviction would result if the instrument was knowingly passed without knowledge that it was a forgery. Guilty knowledge is an essential element in the offense. Such was the law at the time the statute was passed and such is the construction that has been uniformly given. Wharton's Criminal Evidence, Vol. 1, Sec. 35, page 138, note 3.

The terms "such forged instrument" used in the passing statute. Article 937, would include a forged check made by either the person passing it or by another. The indictment was not invalid.

For the first time on appeal the indictment is attacked upon the ground that it fails to charge the facts showing that the offense was committed "anterior to the presentment of the indictment." The indictment was presented on the 31st day of August, which was during the June term of court and charged the offense to have been committed on the 31st day of July, and "anterior to the presentment of the indictment." We think the point is not meritorious. See Osborne v. State, 24 Texas Crim. App., 398; Murphy v. State, 36 Tex.Crim. Rep.; Branch's Crim. Law, Sections 883, 888 and 905; Code of Criminal Procedure, Articles 576, 597 and 451.

Upon plea of guilty the statute, Article 566, Code of Criminal Procedure, requires in a case of felony where there is a discretion as to the term of punishment that evidence shall be submitted to enable the jury to determine the amount of the punishment. In such a case where the jury hearing the evidence assesses the lowest punishment, the sufficiency of the evidence is not open to question. Doans v. State, 36 Tex. Crim. 468. At least, such is the case where there is legal evidence before the jury to support the judgment. Woodall v. State,58 Tex. Crim. 515.

In the instant case, in the absence of a statement of facts, the presumption is indulged that there was evidence before the court to support the judgment.

Finding no error, the judgment is affirmed.

Affirmed.

HAWKINS, JUDGE not sitting.