49 S.W. 379 | Tex. Crim. App. | 1899
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of three years, and he prosecutes this appeal. *166
Said forged instrument is as follows:
"Office of W.E. Ditto The Cash Merchant. Kaufman, Texas, Dry goods, clothing, June 4th, 1898. shoes, groceries queensware.
"Mr. Thompson. dear sir
"if you please let the negro have some cind of a buggy he is alwrit if you will give him untill foll he will pay for I will see that he will pay for it myself you neants to be afraid of him if you will let him have it let him have a pair of harness too if you have one any cheper than that $35 one let him hove it."
And the said false instrument was signed, "A.J. Hurley, Stubbs, Texas."
The State set forth the meaning of a number of misspelled words by innuendo averments, which, we think, was proper and sufficient; and, by an explanatory averment, it is alleged that the name "A.J. Hurley" was signed on the reverse or opposite side of said alleged forged instrument, because there was no room on that page to sign the name. This, we think, was proper pleading. The State further undertook to set out, by explanatory averments, with reference to the payee of said written instrument, and with reference to the payor. We quote from the allegations in the indictment in that regard, as follows: "The above instrument, made as aforesaid, by the said Isaiah Colter, was presented by the negro mentioned in said instrument to Mr. Thompson; and the said Mr. Thompson was one E.E. Thompson, who was then and there a member of the firm of Thompson Brothers, said firm being hardware merchants, and dealers in buggies and harness; and said negro, who so presented and was the bearer of said instrument aforesaid, was the defendant herein, and was presented by him to the said E. E. Thompson for the purpose of obtaining from the said Thompson Brothers a buggy and harness on the credit of the said A.J. Hurley. That said false instrument would, if the same had been true, have created a pecuniary liability on the part of the said A.J. Hurley to pay the said Thompson Brothers the value of said buggy and harness. Appellant questions the validity and legality of said indictment, because the explanatory averments do not sufficiently declare in whose favor said order was made, nor who composed the said firm against whom it was drawn. We may deduce by a method of inference that Isaiah Colter was a negro, and that he was the negro in whose favor said order was drawn, but such inference, even, is far-fetched. We believe that there should have been in the indictment a distinct allegation to the effect that the said Isaiah Colter was a negro, and that he was the negro in whose favor said order was drawn, and to whom it was intended the buggy and harness should be sold. See Bish. Stat. Crimes, sec. 336. We quote from said section as follows: "The name of a payee or something from which to ascertain *167 to whom the payment is to be made is essential." And see authorities there referred to. This is not an instrument drawn payable to bearer, as was the case of Hendricks v. State, 26 Texas Criminal Appeals, 176, but to a negro; and we think it should be stated, by explanatory averment, what negro. The order on its face was drawn against a Mr. Thompson. The pleader explained that he was Mr. E.E. Thompson, and that the order was intended to be drawn against the firm of Thompson Bros., of which he was a member, but does not set out who composed the firm of Thompson Bros. We think this should have been done by a proper explanatory averment. For the errors discussed, the judgment is reversed, and the prosecution ordered dismissed.
Reversed and dismissed.
DAVIDSON, Presiding Judge, absent.