*1 TEXAS CRIMINAL REPORTS
MAY, 1915.
J. J. v. The State. April No. 3513. 1915. Decided granted Rehearing May 1915. —Passing Forged 1. Forgery—Affidavit. Instrument—Basis of Where, upon instrument, trial of passing forged the instrument out set true, the indictment an showing, affidavit if grantor in a quit claim was the person therein, etc., deed identical named and was such mem which, true, orandum writing would have affected the the grantor title of by estopping him bringing therein, suit land described the same was such instrument writing afford the basis for forgery and forged Davidson, instrument. Judge, dissenting. —Same—Explanatory
2. Averments^—Indictment. alleged upon Where which the forgery was was self- based explanatory, it was necessary to set explanatory out averments in the indictment. 3. Stated—Explanatory —Same—Rule Averments. If the instrument on face is its imports obligation in re gard ing property to the will afford basis a civil action resort without testimony, extrinsic are necessary. extraneous averments Following State, 59 Rep., Reeseman Texas Crim. 430. —Same—Indictment—Agent—Surplusage. 4. alleged Where the indictment that the defendant through agent instrument, alleged allege agent did said transaction, party to but the alleged agent an innocent words about the unnecessary, them, surplusage and indictment valid without Following error. 48 Rep., was no eases. Rawls v. there other Davidson, dissenting. Judge, Stated—Principals—Pleading.
5.—Same—Rule necessary allege rule that facts relied It is the principal, although to be a trial not have show been part performed him. reason of the committed is a he may commission of under an in- by him in convicted charging directly Following him with the actual commission. Wil- dictment liams Texas, 392, 42 cases. — — Court—Principal Accomplice Conspiracy—Inno- —Same—Charge of Agent. cent Where, objected upon trial of passing a the defendant jury require to the party because it hot to find that court’s through in the indictment named whom the said
Vol. Crim.-l Keports. 77 Tesas Criminal [May, agent the defendant so to make was the innocent the defendant
occurred crime, in the the evidence showed that a defendant ferent and the said principals crime, together each acted as dif- performing ¿ conspiracy thereof parts wl;ich existed defendant "and *2 Davidson, parties, dissenting. reversible error. party Judge, there was no —Same—Principals—Buie Law—Statute. Stated—Common 7. another, a part place part crime be committed in each part either principal, concerned liable as a forge and by combine a and where several document each himself executes forgery together when the instrument a distinct is are, nevertheless, completed, they guilty as the com principals. This is State, rule as as the 21 statutory Following mon law well rule. v. Smith 107, Davidson, Judge, dissenting. other cases. Texas Crim. —Same—Sufficiency Evidence. 8. Where, instrument, upon passing forged trial of the evidence suffi- was conviction, ground. was no error on cient sustain the there reversible Davidson, dissenting. Judge, Opinion. —Same—Language Used 9. inadvertently explanation language court opinion See for as to' used original opinion. to Land. Construed—Title 10. —Same—Indictment—Statutes alleged forgery passing the indictment Where 949, Code, forgery affecting title defining Penal defined articles 947 of instrument which including character would affect to lands and land, Davidson, dissenting. was Judge, sufficient. same —Same—Charge Court—Punishment. 11. Code, 949, Where, under upon trial of 947 Penal articles forgery ' statute, and punishment under another erroneously trial court submitted maxi- was not the minimum and within punishment assessed based, judgment which the was prosecution mum terms statute cause and the remanded. must reversed Criminal Procedure. 13.—Same—Principals—Article Code Where, upon evidence did trial alleged have been party whom it the conclusively show that the con- the contention in the commission in the crime because sustained viction could is court, error. untenable; besides, issue not raised in trial Davidson, Procedure, was no reversible Criminal article Code dissenting. Judge, Indictment. 13.—Same—Mew suggestion prosecuting attorney the court to the opinion See n found, evidence. the case made so as cover a new indictment Tried before of Hale. below District Court from Appeal C. Joiner. Hon. K. instrument; penalty, a forged of conviction Appeal in the penitentiary. years imprisonment two case. states the The opinion Pucket, for appellant. & Cunningham, Ferguson F. J. On question v. Wombel subject forgery: of instrument insufficiency v. The State. 1915.} State, 827; Cagle State, 44 S. W. v. S. W. Rep., 1097; Huckaby Rep., State, 942. 78 S. Rep., v. W.
On allegations: Colter explanatory 40 Texas 165; Crim. 42 id., 585; Black Pelton v. Rep., State, 60 W. Rep., 132 S. Rep., McDonald, C. Assistant Attorney General, C. State. Appellant was
HARPER, Judge. convicted of the offense of passing a forged instrument, and his assessed at two punishment confine- years ment in the State penitentiary. The facts in this case show traded some property in Oklahoma to R. H. and in Thompson, exchange therefor Thompson gave him a deed some property City; quit Oklahoma also claim deed to 640 acres Texas, land Swisher described in County, *3 record as section Ho. 3 in B-6, block Ho. Mr. certificate Ho. Thomp son testified that he "would say County he owned the Swisher section when he sold Dillard, it to but it.” he a claim to further had It appears record that had to appellant make the deed Thompson the Swisher County to brother, 23, section his R. Dillard, J. on April 1913; that Heal, thereto subsequent appellant, indebted to A. L. being had his deed brother money to Heal as property for the security he was Heal, due and the title inwas Heal at the time of the trans actions hereinafter recited. The evidence would show appellant took of sale up with Jas. DeLay, land R. H: Jasper Haney, and Fred C. The correspondence Pearce. with car DeLay ried on in appellant’s name, own while the Haney with correspondence in the Stone,- was carried on name H. of W. and the evidence would authorize the to find that the letters “H. signed W. Stone” were in fact written One witness met by appellant. testifies he in Amarillo, Stone, he had at a registered where hotel in the name of and he there had talk him about this transaction. Thompson identifies the signature handwriting to the Stone letters as in the being appellant; correspondence shows that communications to Dillard mailed would write (appellant) by DeLay, Stone that he received the DeLay. had communication from It appears to DeLay land at appellant finally per acre; $8 priced DeLay acre; to at to $10 contracted sell the land dollars per make the two acre he was deed from Heal made to In him, DeLay. having on the title there was an record title of appears outstanding one Joshua H. Truet to the section deed land in question, 435, Arnold to 5, from and Barrett Truet in volume recorded page DeLay of the deed records of whom County. Swisher to demanded selling land claim deed from Joshua H. Truet quit he would the title. before letter of October accept Appellant, date 13, as to 1913, DeLay: deed, writes '"How claim that has been quit price, tried can’t had for the is 85 any years old contends for all the land. this line, unless Nothing doing along quit Reports. 77 {May, Criminal similar Truitt, Sr.,
claim had from another H. can be Joshua as per years Hale several ago, case to section down near Center which you recall. There a number of Truitts world probably sums. will make claim deeds nominal Do you idea? quit get to be to We don't driven is any want extremity Later, to earthly show to the deal.” writes DeLay close deal “If nothing letter dated November 1913: will carry else Texas, to East I through you will advance me to make a trip $50 Hence it. claim. will Neal to bear get expense quit refuses claim, me compels expense and the quit bear expense to it, which I will.” securing furnished after this last deed letter claim Shortly quit Sr., Truit,’ section from H. of land to be Joshua question, appearing deed $2000 E. H. cash. This consideration Thompson, reciting McKenzie, Truit before W. aclmowledged A.
purports public, Shelby County, Texas. notary no aclmowledged that Mr. deed Mr. McKenzie swears Truitt Texas, swears County, him. who lives G. Stephens, before H. Shelby very Mr. Truitt is aged of Mr. Truitt; son-in-law feeble, years; and has more than not been his two from home away business, he, busi- transacts he transacts Stephens, signature him. he is with Mr. Truitt's That ness familiar that he the deed swears Thompson. Thompson did not sign $2000, him deed and had Truitt, no such nor paid obtained deed, claim purporting other sum of However, quit money. record in Swisher Thompson placed be executed Truitt but the whom County purchaser book page aas title, land still to contracted accept giving sell refused *4 in question that the from to Arnold section deed Barrett and the reason Trust, §oshua to Thomp- claim purported quit made H. the was while to Truit, iden- proof H. demanded Sr,, son Joshua and signed was the same to the deed the person signing Thompson tity land in 1875 and and sold Arnold had to whom Barrett person W.H. N. name writing Jasper man Haney who was attorney proposed to wrote have DeLay Haney Stone send would and it. accept he such write purchaser in duplicate, attorney that he affidavit prepare DeLay says had Falls, and other to appellant and them Wichita sent he says McKenzie he affidavit from received the W. to McKenzie. A- dead; Truitt him, to that and it thereon was endorsing DeLay returned acknowledgment taken or further he never affidavit and testified had Jasper Haney. N. life. “H. writes Truitt in his W. Stone” Mr. from he says DeLay (which DeLay received affidavit he that has day Haney then or writes to two to and Dillard (appellant) sent and mail to to him the get been has forwarded affidavit that matter, which the he Haney the affidavit says got and close mail; and presented DeLay that out was to based forgery title; on the this affidavit attorneys strength parsing ms.} The State. him executed DeLay $3000 was and and paid (Haney) title passed, Haney amount for the section of land. Of this
two notes in payment Haney says to be to $550; DeLay $150 left with Pearce. paid kept conversations he he and some gave for information he was got $550 held it future adjustment. not for fees—that he had; that it was brought that Dillard sent to Heal. Heal says says He the remainder to is thus seen delivered them him. It him check notes and and land, from the received paid out of the proceeds appellant, was to $550, $150, and DeLay get Pearce Haney got debt to Heal. the man for whom he was and acre, buying out of $2 $1280 per the evidence in sell the land. In our opinion whom he was to that a existed authorize the to find record would clearly and title, and they and DeLay pass between appellant, H. land, Joshua man who claimed the each of them knew that deed, and claim signed Truitt of had not Shelby County, -quit affidavit; not not so; sign that he had and would do H. Stephens Gr. fact Truitt did not do so is shown by testimony H. Truitt Joshua the name of McKenzie, and W. A. and to the affidavit some to the claim signed deed quit to the deed Truitt; acknowledgment than Mr. that Mr. Truitt’s notary public, taken McKenzie, oath the affidavit was W. A. instru- these signed name as public, McKenzie’s notary done and was That this to be done ments some other person. DeLay, knowledge appellant, Haney Shelby that Mr. Truitt, each of them were aware of the fact land, had signed the man claimed the fact County, who the affidavit to the attorney pass- papers presented knowledge on the title for the with this ing purchaser, affidavit, with either mailed to him the Haney, mailed attorney it to it to the might instructions give present instructions, accordance with get passed. Haney, did Haney’s did DeLay, DeLay, presence, present give instrument and who, to be genuine attorney, believing Truitt, the title. act of an instru- is not insistence is affidavit first Appellant’s count be based. The second ment can forgery Which upon the indictment reads: court, do oaths, aforesaid, their in said “And grand jurors January,* Dillard, day on or about the 5th J. J. present, further unlawfully A. D. and there county then DeLay, true to K. wilfully, Jas. knowingly fraudulently pass J. Dillard’s H. his, agent, Haney, J. through Jasper *5 instrument in to the tenor writing following: State of Texas,
County Shelby. this authority, day appeared Before on me, undersigned personally sworn, on his oath me first Truitt, Sr., duly Joshua who H. Beports. 77 Texas Criminal [May, says: That he the identical Joshua H. Truitt to whom Arnold J.S. 19, for himself at the in and fact for A. M. on Barrett, attorney May 1875, land Wo. issued conveyed certificate to said Barrett Arnold and 1875, May 1, work channel of Angelina conveyance river, hy inadvertence is made 5, to Joshua H. Truet and is recorded volume page 435, of records; Swisher deed he is the identical County per- wife, son Barrett, warranty whom L. T. Barrett M. special hy A. deed dated 27, 1879, 5, in volume of' May page 435, recorded records, Swisher deed their interest County conveyed all 48, lands covered the location of said certificate Wo. meaning their 3, B-6, interest in and to County, section Wo. block Wo. Swisher Texas, affiant, so as above set acquired separate property out, for out of as paid and was used or separate estate, 'occupied never homestead, and affiant said hold, manage continued use and 1913, above described section of land till when by quit January claim deed of that date recorded in book Wo. Wo. Swisher page records, deed cash County conveyed title was for a Thompson B. H. consideration of Two Dollars and said Thousand executed ($2000) deed the act deed H. Truitt, signed of said Joshua when he Truit, Sr., instrument J. H. the facts above set forth each of affiant true every knowledge within and correct. H. Sr. Truitt,
Joshua December, me, Subscribed sworn to before this 30th A. D. day McKenzie, Texas. Public, County, W. A. (Seal) Wotary Shelby the said J. Dillard then Which said J. writing true, and did the same as forged, there knew to be then and pass defraud, dignity the intent injure against peace with of the State.” Oj. this statute vo character forgery applicable Our defining makes, falsely or forges causes “Every reads: falsely or assists, encourages advises aids, made or or forged, way any right, evidence of any any or or forging paper false making any document, in writing, or character, any or claim any lands or interest in relation to or affecting memorandum paper, valuable intent to make or other money this in lands in assist title, or or aid or with intent to set a claim thereby, up thing lands, lands interest title to else a claim or anyone setting up of forgery.” be deemed guilty shall land; instrument would convey insists Appellant record, etc. placed is authorized to an instrument as it is suit for Truitt should true, bring Joshua H. this is yet While was a claim deed quit alleging of land question, section m made affidavit admit take the stand forgery, in law circulation, estopped he would it m and put land, rely had purchased one who recover land from swear he would true, the affidavit. the truthfulness ing *6 y. 7 The State. 1915.1 1913, of date January affidavit “that claim deed by quit of for by him to E. the consideration conveyed H. Thompson title was if which, writing a in $3000.” This would be such “memorandum” is land, and true) bar Truitt would forever recovering In thereon. an instrument a of be based can forgery held: it is Texas Crim. State, case of Lassiter 35 Rep., v. writing “It in is not that the or instrument in this case deed pretended does not indictment, stated, purpose could have as been registered. ‘made set out an is allegation acknowledgment. instrument a certain which false instrument in false and writing, It is did then etc. and there relate to and an interest in affect lands/ it even in a deed, deed, delivery a form it was called yet absence in therein, described competent convey land thereby of a certificate of witnesses, two in absence subscribing afford it would condition, In acknowledgment. in such opinion, our an instrument basis of was such suit for It specific performance. afford, a in which as contract writing basis of valid conveyance the Act language could be enforced. Under the record) which the togo indictment was drawn not entitled (although it it subject was such as constituted conveyance title paper it forgery. title; although As between the parties, conveyed differ was in an make no inchoate as to this would state registration, bond, It has ence. was as much subject as forgery bail been to answer sureties, as to the a party appearance for criminal its or before its before charge, sheriff, approval made with court; feiture in the instrument falsely rule intent is a had other forgery, although, genuine defraud been must steps have been taken before instrument would perfected. Costello, 358, ap are not steps These taken. See Com. 120 Mass., v. as in v. 14 Crim. And proved State, Texas 156. Costley App., the transfer subject forgery much deed prepared blank, in to be afterwards land, which left the name the transferee State, 364. From what filled out. See 6 Texas Crim. Phillips App., we indictment said it instrument set out in the follows forgery.” was such writing subject deed or State, 364; also 6 Heard v. Texas Crim. Phillips v. App., See Texas 1; App., 9 Texas Crim. 11 Rogers the instrument averments Neither was necessary explain aver- instrument—it than there contained containing is it, added thereto necessary ments could be nothing explain It sets had been made extraneous averments. forth that deeds in3, J. No. and Arnold Truet to section No. block Barrett Joshua 1879; B-6, Texas, 1875 and certificate No. Swisher County, Truit, conveyed Sr., that affiant his name as Joshua had H. signing named; consideration to E. H. land 1913 Thompson conveyed Barrett affiant the identical to whom and Arnold land conveyed land, and is identical person day instrument as in common use such an It is Thompson. Reports. Criminal {May, and time in making proof defects in seemingly apparent the chain to land in fact not defects, but the title regular every respect, hereinbefore stated, if was genuine and had been put maker, circulation it would bar effectually *7 of the recovery land from one the- who had it, purchased relying truthfulness of the statement contained in the affidavit. It is contended that the affidavit °a not be than more effective letter written. To that, concede a letter written yet containing such statement facts, Truitt, if it had been written Hr. by put circulation by him, if the it pur- relied on purchaser in making chase, would bar Truitt case the land. In the recovery of Cagle v. State, court, 44 S. 109,7, W. after Rep., discussing question length, states the rule “It is rule succinctly: general of such writing may form as to be the means another defrauding be the subject of forgery, and if the on its face is such instrument an imports obligation to will the basis regard afford property, aof civil action without no extraneous to extrinsic resorting testimony, averments are work This instrument its face would necessary.” to estoppel land, shown, Truitt’s alleged, claim to the passed Texas Crim. put State, circulation. Reeseman v. 59 Rep., 430, 138 S. W. 1136. Rep., indict- to only ground upon sought quash ment is instru- charges indictment passed appellant ment should his, Haney, through agent, Jasper M. appellant’s have contained an instru- that the did not know allegation
ment an innocent forged when he it—was in fact an act transaction. Our if one does statute provides agent, who does not know the act is illegal, “by the words commission of the if we treat as offense, and surplusage his, strike through agent, J. J. Dillard’s, Haynie” U. Jasper .and fully them indictment, from the an offense would be against law Law, forth see. set indictment. In Branch’s Crim. legally that which is be, rule is stated “If descriptive correctly words or alle- indictment, unnecessary essential to validity Texas State, Rawls 48 v. gations rejected surplusage,” citing may v. State, 643; 633; Mayo v. 41 Texas Crim. Bolton Crim. Rep., Rep., 343; State, App., 7 Texas Crim. Warren v. 17 Texas Crim. State, App., State, 307; 354; 33 Texas Crim. State, McConnell v. Hammons v. App., 358; 445; State, Texas v. 33 Texas Loggins 39 Crim. Crim. App., Rep., State, 35 Texas State, 540; Lassiter Texas Crim. v. 37 Rep., v. Jordan allege And it is the rule that it is not necessary Crim. 333. Rep., facts to show the on 'trial principal, relied him. have been committed If he is although may reason of the him in the performed under him he convicted an indictment charging the offense may 393; Texas, State, its actual Williams v. 43 with commission. directly State, Davis 3 Texas 508; 3 Texas Crim. v. State, App., Gladden v. 501; Texas 91; App., Tuller v. Crim. Mills Crim. App., 1915.] The State. 487; 13 Texas State, 39 Rep., Red v. Crim. his, words Strike from indictment “by through indictment Dillard’s, Haney,” charges
J. N. agent, Jasper J. facts with alleged, the commission the offense appellant offense, do not constitute him a in the commission of the the conviction would not be facts course sustained. do constitute him unnecessary, the words principal, wholly quoted are, therefore, and should be treated as We surplusage. opinion court err the indictment. refusing quash The count in the indictment with charging appellant forging set all the elements of the but as forth was not count, under that comment unnecessary convicted we deem further thereon, jury. issue submitting second count charged appellant this is the hereto- convicted, count which he was and which has herein, fore been set forth whether submitting or not to which *8 to appellant objects objects in the “Defendant following language: charge said for that this the reason it is not the State law of to the facts in case that it applicable the this in this: does require to find the defendant jury agent that was when his said present said instrument and does not that the to find the require jury H. such Jasper Haney was the innocent without agent of the defendant knowledge on his as would make him in the crime part principal the defendant an defendant accomplice, the to the court suggests is not authorized the evidence that the reason no evidence that showing the said was the innocent the defendant.” Haney agent of This frankly the the complaints record, of in the and we state that if all the evidence make the State had to appellant principal in the of the agent was that was an innocent Haney sustained, the passing the forged judgment would not be this no record would or the con reading say could record clusively showed that. had no was knowledge Haney the at forged the time he it to delivered DeLay pass title to the land. was the Haney agent mere of and had appellant no knowledge that instrument was when he "(Haney) passed, would no offense, would appellant the commission And offense. it is this true record presents case, such if the on state sustaining conviction relied facts, it could not and stand, but it should no such depends upon received, case. .state of money $550 testified he held Haney “not as fees” “for some information some conversa gave he tions-that occurred office.” The would authorize record further find letters to jury Haney signed writing “H. name of the contents of letters W. Stone” and received would cognizant show of all the fully Haney (Haney) pro ceedings, and that was'a in the commission Haney find that DeLay offense. The record would also authorize Beports. [May, 77 Texas Criminal him, “that fraudulent wrote undertaking. also knew the Appellant had for the claim deed not be quit any price, line old, and for all land. this contends years Nothing doing along Sr., Truitt, unless a claim deed can from another Joshua H. quit be had Center, you prob similar case to section down near Hale per will recall. are a of Truitts in the world and ably There number A idea?” make claim deeds for Do quit you get nominal sums. Truitt did not deed was quit claim which the real Joshua H. procured, and was But sign, spelling of record. on account of placed title name “Truet” in the deed the attorney passing claim quit demanded prospective proof identity purchaser the land to whom person as the claim deed same making quit DeLay had been conveyed 1875 and 1879. The letters of appellant In taken. show aware of the Haney steps being were fully rep fact, of Hr. testimony McKenzie, public, notary shows affidavit, resented as taken the having acknowledgment he.says affidavit, for DeLay knew Truitt not in fact signed Truitt on it when he he endorsed received of the affidavit copy dead, to, yet unsworn and returned it to unsigned DeLay this before him an affidavit made Haney brings have been purporting same McKenzie, lawyer he and take the affidavit to Haney whole title. title, the affidavit him get pass con that a record teems with a finding evidence that would justify were parties existed to which spiracy Haney appellant, And instruments. get reason of these forged passed by DeLay, arises, if Haney instruments, and performing securing law, constitute them, this, securing and DeLay accomplice him a or an in the commission of the accomplice, If it him an commission of the offense? constituted *9 con acts If his then he could not convicted under this indictment. in the passing him a and Haney stituted in the acts principal To this the conviction should sustained. instruments, of the forged be. Mr. writer, That law we have able thought. much given and place in one “If of a crime be' committed Wharton, says: part either part concerned in the another, in each part a document forge liable if several combine as Hence principal. they and forgery, a distinct of the and executes himself part each nevertheless, are, the instrument is together completed, they are not Law, ed.) 11th Crim. Wharton’s guilty principals.” (Sec. towas it made manifest appellant’s part In. this case plainly him instruments, and they procured procure his to act as that was the instrumentality; part his through title, and perfected and insist that the papers procured attorney the prospective to the attorney it in with DeLay connection deliver transaction, this in in fact did perform and each purchaser, prop Mr. Wharton as announced and under law may an But it not as accomplice. principal erly prosecuted State. 1915.] be insisted announces Wharton the common rule, law while in the statute defines this State who are and who are accom principals this is true, and these statutes plices, and have been often before court construction, and most exhaustive discussion of the question is found in ease in of Smith v. 21 Texas an White. In that case facts tended Judge opinion Presiding County, show that the lived Parker Smith, M. M. in appellant, conspired Taylor with Bud and others steal cattle situate some then in Erath County; procured two brothers of the they appellant, Smith, Dave and Erath Jim and Tom and Frank Saunders to togo Parker cattle and them to M. M. in County get bring Smith charged the four do All County, and so. six were indicted jointly cattle, Smith was theft of the the case referred to M. M. trial, alone County; and he was shown not to have to Erath gone in Erath off have been when the cattle were taken County range driven to Parker was seen in he County, possession Bud in Parker evidence County—the cattle showing own, claimed cattle Taylor as their they procured them four men to to Erath cattle County, round the go up bring fact the of M. Parker The cattle were in E. County. property Erath W. A. Trammell. M. was not fact in Although M. Smith stolen, when the cattle were to be yet principal County held County. transaction, and liable to Erath prosecution court, facts, says: after stating “But can circumstances he question is, party statutes time offender under our when he is at the present in the commission crime, where place, participating an innocent agent, by is not but a actually committing guilty rule, his own ? knowledge virtue of intent Mr. as a guilty Bishop, not, instigator but holds relation becomes says changed an (or an before the fact that of accessory He changed agents. account of the of his relationship accomplice), ‘But, if the incurs then the says: agent employed guilt, employer the fact.’ two authorities are before accessory Only simply (Id.) text, been accessible. cited support the doctrine can not be of universal “If correct principle, appli- code, where all are who are principals under our persons cation act commission of offense. Parties together acting not. together, bodily present together whether us that the distinction drawn between offend- “We believe as known to our code has been as accu- ers and accomplices clearly it, the cases of Cook stated, as we are able present rately State, 17 Texas Court Texas Court of and Bean v. Appeals, is said: In the former case it ‘We are opinion Appeals, *10 this: these two character of offenders is distinction between proper of which accomplice auxiliary only, The acts an constituting and as inducements to be and are him anterior may performed by offender committed; only about to he whilst the crime principal Reports. 77 Texas Criminal [May, some act in may antecedent furtherance of the commission of perform but, committed, the crime, part it is doing is his actually him in assigned work with the plan and furtherance of connection common whether he be main fact be purpose, where the is to present not. accomplished or Where the is offense committed by perpetra- tion of whole, different which constitute entire it is neces- parts one that the sary offenders should be in fact together at the perpetration offense, words, render liable an them In principals. accomplice under our has completed statute is who his before offense its the crime is actually committed, whose attaches after liability commission virtue his about through acts in previous bringing or in connection with offender agency third The principal parties. acts his in furtherance of and the consumma- part individually during tion of the crime.’
“In is Bean v. State is said: ‘The between the two line dividing commencement offense. principal commission If together acted in parties offense, they the commission of are prin- cipals. agreed to commit the offense but did not together, is together its the one who commission, act committed actually commission, while at other, who is not principal, present commission, was not in watch aiding its any way by keeping an or would or concealment of the by securing principal, safety must accomplice. To offender either constitute principal, act during is must do some present where crime committed or he time when the committed which connects him the act statute. Where of commission in some of the named in the ways offense, the acts to the committed occur prior principal with, thereto, of, or and are and disconnected subsequent independent the actual'commission and no offense, act done principal the commission of the party during principal offender, accomplice accessory according not a is an facts.’ case,
“In the employer Welsh’s Texas Court of where Appeals, find, all the and that ordered his servants to take cattle meantime he ahead make go arrangements ship offender, he was them, engaged sell held to be .because in the consummation part the time of theft performing of them. dispose steal of thé con- 7 Texas Court of case, Appeals, “In Scales’ rest to steal the whilst were horses spirators question, them all to take jointly outfit enable get tip provisions statement McKeen (See horses Fort and sell them. Elliott offenders were all 7 Texas Ct. held 631.) They consummating together their acting because doing separate parts the conspiracy. . 134, it is Court of said: 9 Texas “In McCampbell Appeals, an actual partieipancy should show the facts ‘If sustained a conviction taking, fraudulent original *11 . 13 v. The State.
1915.~\ have personally not been although charged, offense taking' at such present ‘He said: 173, is State, 9 Texas Court Appeals, “In of v. Cohea was committed if the act at the taking, be actually present need not where design formed common and a previously of a intent pursuance taker' that the actual united and of the mind concurred with crime to commit stated, of a conspiracy “As before evidence in proof It case, circumstantial. nature of the be generally, will from the actually and together come necessary the defendants prove means. and common agreed design by in terms pursue objects, same by If their pursued defendants acts proved another another and one one means, performing part often the same of attainment to the part same, so as to view complete it they conclusion object, the same will justified case, 5 object (Slough’s were engaged to effect conspiracy would together Rep., 680), acting Fed. under our statute of the place make all offenders, bodily whether present, State, v. 492; Heard State, v. Ct. App., or 4 Texas (Berry 358), Texas 1; 9 Crim. State, App., Crim. v. 18 App., Wright long portion are all together principals acting words, in other or object design incomplete; of the common remains is consummated object until the the conspiracy full of purpose the con Hence, was shown larceny accomplished. ‘where in stolen as to spiracy goods extended as well to dividing was deemed theft; what dividing and the stealing between good Scott against evidence Proc., citing both.’ Bish. Crim. (2 Ala., adopted 30 State, recognized This 503.) doctrine is expressly rule us in and the same State, 14 Texas App., O’Neal v. State, announced in Tenn., Allen v. Lea, “Now, hand, if stated to applying law above the case as. Jim and Dave innocent M. then agents Smith, Smith were the of M. all M. M. there between Smith was was a principal. conspiracy commit Dave parties to to be done Jim theft, part being assigned take the Smith property, and M. M. all taken, sale was so then were offenders.” after If the stated, be there correctly rule law then the appellant offense, in the even though was the all the guilty agent facts, as the evi- knew did, dence would that he Smith case indicate if opinion correct then the criticisms exposition law are without court’s merit. case, has this court Smith been referred supra, frequently Neiderluck Crim. 23 Texas approved. The case into with others conspiracy was a case where a servant entered to enter to commit them door open permit residence shown, theft. As was a enter crime of persons held ing burglary, house were the commission of the the court saying: principals Reports. 77 Texas Criminal [May, seen, however, “We háve Levy not induced to open door any trick fraudulent device. 'He was not the dupe, assistant willing co-conspirators, fully cognizant of their feloni- intent, ous the master and controlling spirit. There is pre- tence either that Wing duped misled into opening door *12 his the house to conspirators. The record leaves it beyond question nor Wing neither was induced Levy fraud to en- permit at trance. the time Levy, of the door, every opening shared intent and of in crime. ... purpose companions “We have been considering this question upon assumption there was not a a breaking Levy, conviction of justify ' he alone, domestic being servant. If the domestic servant is acting must actual breaking to render it But does it burglarious. follow that there must be such when servant is breaking acting with others who are not servants? We most subject given this careful consideration,' and are led to conclude is such breaking Russell, not necessary. Mr. subject, says: ‘The breaking also be Thus, by conspiracy. when servant a-thief conspired with to let him into his and, master’s house to commit a in conse robbery, of such quence agreement, or opened night door window in the time, and him in, this, let con according to better opinion, sidered to be both thief and the men burglary servant. Two were indicted the evidence that one burglary, "upon appeared committed; them was a servant house where offense was that in the door, he let night-time opened street in the other pris oner and showed him the from- other sideboard, whence the prisoner out, took the then platethat opened door and let the prisoner but did him, with went bed. go And facts these found all of the were of judges opinion specially, both prisoners were were executed.’ burglary, Russell, accordingly (2 pp. 10.) a similar state “Upon facts, Lord Hale ‘It seems to said: be bur- both, if it in the must needs burglary thief, be so glary servant, because he is to commit present thief aiding ” burglary.’ State, In case of Watson 31 Texas Crim. v. was held App., Watson was reason of the fact that he had entered principal into two others to steal some conspiracy hogs, and while offense, yet the commission to and present agreed hogs which the stolen were to be in fact were prepare pen in these The rule announced cases is placed. approved Montgomery 693; State, v. 33 S. W. Blain Rep., State, 34 Texas v. App., is And case v. 36 Texas Crim. Phillips “It also a tersely stated: is familiar general rule that several when or combine parties conspire together act, to commit an unlawful each is responsible for the of his criminally acts associates or- confederates or in committed in furtherance of the common prosecution design State. 1.915.1 Texas Crim. The case of Mason combine.” which they , Mason held a principal 306, is a case wherein Rep., check, although personally present aof passage well settled “Again, the court saying: check was passed, their act charged pursue it is persons where proved some and another one part one performing same or purpose, object attain view to it with a same, as to complete other so in the conclusion will be justified ment of the same object, to effect that engaged object; a conspiracy offenders, whether all together our statute such make acting not at the offense. And they present place bodily any portion long offenders when acting together, words, the common remains design incomplete;-in object consummated until object the full purpose accomplished.” would constitute whether evidence-for State writer that has accomplice given of law announced trouble, we are to follow the rule little yet *13 that no us, there be question those eminent men who have can preceded, and the the in this case constitute appellant evidence would finding not an the facts in this case would justify accomplice, title this that a and others to get existed between appellant was the and this affidavit passed by procured attorney purchaser, got and affidavit and Haney, mailed to the presented appellant the
the was received reason of fact the money passed, true, this forged, appellant affidavit had been presented the end. the transaction from performing beginning fact, and he writes In he was man relied on paper, to get mailed,—to “that the transaction back through; has been hurry get return to me.” affidavit and original other raised is claimed the evidence insuffi- is, The only Haney do, of we cient sustain conviction. view Taking transaction, also witnesses, principals be DeLay, instructed the at least submitted jury, should have so court could instructed that if so found they issue to jury, they their unless believed true they not convict upon testimony defendant with the commission testimony their connected offense; further, to convict appellant would not be authorized tend- even if in the case so found unless there testimony offense. -of the defendant with ing connect complaint court did not so instruct but jury, sufficiency this on the charge However, respect. of the opinion we have viewed it from this testimony standpoint Haney testimony of that the other evidence not corroborates only record from the their excluded was-wholly but if evidence DeLay, authorized to find jury appellant would be appel- telegrams of letters into consideration the charged, taking Reports. 77 Texas Criminal {May, lant record, found which are tes- proven independent of the up of Haney and timony DeLay. is affirmed. judgment
Affirmed. Judge. DAVIDSON, From my this record and understanding law, there are such errors grave judgment ought this to be reversed. the affirmance is adhered I to will write briefly. UN REHEARING.
May Judge. HARPER, At aformer term day of this case affirmed. .In the court below there were three grounds assigned in the motion for new trial should aside: why judgment set 1. That charged indictment no offense under the laws of this State, in that the instrument was not such an instrument forgery based, and if such an indictment not contain the necessary averments. explanatory 2. That the court’s erroneous in that permitted convict jury to defendant of N". forged instrument if Jasper was his Haney agent, without requiring the find anwas innocent Haney agent appellant.
3. Because the evidence was insufficient to support verdict, this, the evidence failed to show were Haney transaction, connected acting was not an innocent agent. These and these new only were raised questions motion below, trial the court and in filed. bills These exception the only hearing in the briefs filed on the questions presented original and in able argument made the submission of Conse- the case. *14 they were the on in the quently, only questions passed considered original were we had mind at the opinion, in only questions time Had writing opinion. sought now questions to be raised first for the time in' the motion for been raised the' in rehearing a for trial in at below, motion new the court and discussed or raised this time ease was this originally submitted to so court we had them in mind, have some is used in the language original transaction, in with the opinion, connection referring DeLay’s per- should not or haps would not have used. But no questions been such being presented, mind, and not them in if in the original opinion having we used which to mean any language or would be construed the record demonstrated not we should principal, was, have what language, say used we intended to hold for that the raised the issue that the testimony cogency force jury would authorized to submitted so find if the had been to them. But neither nor in is the indictment, charge, ques- tion of DeLay’s connection transaction submitted charged with the - y. 1915.] intended to the With these what we jury. remarks to make clear original questions and hold in the we will discuss the opinion, say which for the motion for now raised first time rehearing court, this and which court, raised in the trial nor discussed this the briefs filed in court. indictment,
toAs indictment now concedes appellant does charge by instrument forgery passing as defined forged 947 and articles 949 of the Penal but he contends that the court Code, submit code, his did not these instead charge but provisions so, submitted doing forged instrument as forgery passing by defined true, articles 924 and 937. If this is this could not affect indictment. Under validity article defined forgery another, a false to be-the making act of purporting which if true created, increased, discharged diminished or or defeated any pecuniary obligation, would have transferred or manner affected any whatever. This is the statute any property general defining but the land forgery, forged instruments making affecting titles became so time in general one this State the deemed Legislature affixed to punishment ordinary forgery insufficient' matter, special statute heavier governing penaltjf, a much affixing and so defining lands to include character forgery affecting of instrument affect which would the title to land. instrument which the based in this forgery would, case is shows its would, land, face to be one which affect the title to comes under articles 947 and 949 of the Code, these are indictment, offenses in the and as charged original held opinion, which, the indictment does under those provisions, is conceded apparently, his motion rehearing, insistence now the court did submit to the jury indictment, offenses charged but submitted forgery passing instrument as defined articles 924 and 937 instead of sub- these offenses as defined articles mitting 947 and 949. pun- ishment was the prescribed might same we deem immaterial, ordinary passing forged instrument less punishment is not than more than two nor five years, while the punishment title to land less affecting is not punishment than five nor more than In this years. case the twenty punishment assessed'was two only years, and within the minimum and maximum terms for a forged titles, there- and, land affecting fore, has been assessed a punishment not authorized Had indictment. our attention been called to the fact punishment authorized to be assessed and which jury, it, assessed within was not of time as period Legis- fixed by lature, the case would not have been but at that time we were affirmed, *15 only the the discussing raised the court below shown questions by record. As said this before, was never the motion question raised until for was filed in this we rehearing court, but deem it such an error as
Vol. 77 Crim.-2 ¡Reports. [May, Criminal a to assess time,, right can be for the courts have any raised laws of this for the the State punishment provided by offense. and raised for in this Another in the motion court rehearing question a court, charged passing not raised in trial is that as the indictment a on show that was DeLay, and would DeLay evidence on him offense, it could been the commission of not have passed If true, therefore the would not sustain the verdict. evidence a was DeLay evidence showed conclusively taken, well because commission of the this be ground might it if a he forged passed one would not be instrument passing under a it both instrument, on who knew was a forged they person used that was to be as true on it standing agreeing ease indictment. But the in this third not named record com conclusively DeLay does show was he have been might mission the offense. It raises issue that between appellant shown have existed conspiracy to. was issue to fact yet Haney pass on trial entitle to new raised evidence would not by appellant e have to raise issue h should desired ground. appellant court, it for trial and then have been done so in the would proper that if found court to instructed the from the evidence jury, they have Haney had entered into appellant that DeLay conspiracy from DeLay, this instrument on the person purchasing to pass that at the received it knew it Haney time he attorney, found that at the should but if forged, be appellant .acquitted; they forged, same from not know it was time received did Haney DeLay forged, be if found the guilty, would appellant they on entered into a it Haney conspiracy pass found that him, forged, Haney or if they knowing DeLay, delivered not know was when DeLay did been However, should have guilty. would court, exception in the trial court raised time, at that counsel, and as not do so presented since court, raised on a in this motion rehearing Code of Procedure. amendment to article 743 of the Criminal trial, as it neces- We this much in of another will be have said view reverse the cause because and remand sary grant rehearing is not court assessed jury authorized punishment this char- fixed as Legislature within the terms punishment we And as the case will be reversed on this ground, acter offense. new returned attorney that he suggest prosecuting it would in one count a indictment, charged in another count DeLay, Mathis, attorney so prospective DeLay land, whom purchaser selling For indictment would cover case made evidence. find that entered pass into the should at the it, time he received was forged, knowing *16 y. 1915-1 The Pabish State. with such title, knowledge ap- passed it on attorney on passing
pellant under the as a principal evidence this case would be guilty in the passing of if attorney; DeLay instrument on the the conspiracy, at as time he received it, appellant with now under the evidence on DeLay, before us.
The motion for is now reversed and the cause rehearing granted, and remanded remanded. granted and reversed and
Rehearing Judge DAVIDSON, original agree could not (dissenting).—I to opinion herein, but concur on reversal Some rehearing. however, latter opinion, I think is not correct. do not I purpose write any length. 1. I agree ground to the reversal on stated, as error to the court in submitting the to the jury. punishment 2. can not I false agree that the alleged forged conclusion affidavit is the It legal without subject forgery. is, in my judgment, efficacy. It could not affect the nor could mentioned, title the land document, to make tend nor forged quit claim deed genuine as affidavit, I law, legal could understand the be used for any purpose. 3. as alleged The false affidavit so could not be on passed
to deceive or defraud. facts are on this of the case phase bearing original stated sufficiently opinion by Judge Harper without on repetition my part. indictment, 4. I no express opinion to whether new suggested found,
if one should should allege affidavit Baker, Mathis. Mathis was the title attorney investigated the sell land. It seems that sought to whom it con- only nection Mathis with the transaction investigate -as for Baker. conclusion was on that matter attorney What known, .is not made nor it shown the documents were ever passed to Baker. They Mathis have been If the given DeLay. was such one as formed held forgery, document predicate brethren, then it must be for the by my purpose deceiving no express someone. I defrauding opinion now, matter facts too meager because the indefinite form the basis conclusion on that definite question.
Bill Parish State. May
No. 3558. Decided Appeal. Carrying Pistol—Notice appeal Where the record failed disclose appeal that notice of record, appeal dismissed; given ever, open court and entered of must be how- considered, reversible record showed error.