Beer v. StateBeer v. State
- Reporters:
- , ,
- Before:
- Davidson
Appellant was convicted of forgery, and his punishment assessed аt three years in the penitentiary. He was charged with forging a chеck in his own favor for $35, directed to the National Exchange Bank, Dallas, Texas, signing the naipe of F. Hesselson. On the trial the State offеred the check in evidence, and objection was urged beсause it had lithographed upon it a Hnited States internal revenue two-cent stamp. The contention is that this constituted a variance, inasmuch as the indictment set our or described the instrument, omitting the stаmp. To sustain this contention, it is necessary that the stamp form a рart of the instrument. It has been held, almost without dissent, that indorsements upоn a promissory note form no part of the instrument, and need not bе set out in the indictment charging that the note was forged. It has also been held that it is not necessary to set out in the indictment any other mаtter written upon “the same constituting no part of the instrument itself, and not entering into it as an essential description of the instrument. It has also been held in this State that on an indictment for forgery of a note, where the indorsements on the note were ignored, it was no objeсtion to its admissibility in evidence on the ground of variance. It was said thаt the indorsement wa‘s but an extrinsic and irrelevant writing, creating no variance. Labbaite v. State, 6 Texas Crim. App., 257. The authorities are quite numerous and entirely harmonious to the effect that the revenuе stamp forms no part of the check, draft, or note. Hal loсk v. Jaudin, 34 Cal., 167; People v. Tomlinson, 35 Cal., 503; Thomas-son v. Wood, 42 Cal., 416; Trull v. Moulton, 12 Allen, 396; Porter v. Bank, 19 Vt., 412; Cross v. People, 47 Ill., 152; Wilder v. Dellou, 18 Minn., 470 (Gil., 421); Cole v. Curtis, 16 Minn., 182 (Gil., 161); Cabbott v. Radford, 17 Minn., 320 (Gil., 296); State v. Hill, 30 Wis., *506 416; Morris v. McMorris, 44 Miss., 441; Green v. Holway, 101 Mass., 346. There are many other authorities to the same effect. We therefore conclude that the revenue stamp forms nо part of the check, draft, or other instrument. However, in the Illinois case, supra, it seems that the stamp was upon the face of the instrument, though not alleged so to be. If the stamp forms no part of an instrument, it is entirely unnecessary to set out or describe it in the indictmеnt charging forgery. See also 8 Am. and Eng. Enc. of Law, pp. 518, 531, for collation of authorities in notes. In Miller v. People, 53 New York, 304, the accused was indicted for forging and altering a check. Upon the chеck adduced in evidence was the indorsement of the payеe’s name and the revenue stamp, neither of which was set forth in thе description of the check contained in the indictment. Counsеl for the accused urged the court to direct an acquittal оn the ground of a variance between the indictment and the evidence. This was refused, and exception reserved. It was held that thе omission did not constitute a variance, on the ground that neither the indorsement nor the revenue stamp forms a part of the chеck, which is a complete instrument of itself. See also Peoрle v. Franklin, 3 Johns. Cas., 399. The notes to this case cite State v. Mott, 16 Minn., 473 (Gil., 434); Laird v. State, 61 Md., 310; People v. Clements, 36 N. Y., 195. It was therefore not necessary to set out in the indictment or describe the revenue stamp, as it formed no part of thе instrument, and there was therefore no variance between thе allegation and proof.
It also suggested there is a varianсe betiveen the name “Hesselson” set out in the indictment and that upon the alleged forged check produced in evidencе, and for our inspection the original check was properly certified and sent up in the record. An inspection of that instrument does not verify this contention. The evidence supports the conviction, and the judgment is affirmed.
Affirmed.