26 S.W.2d 258 | Tex. Crim. App. | 1930
Lead Opinion
The offense is passing as true a forged instrument; the punishment confinement in the penitentiary for two years.
It was alleged in the indictment that the forged check was passed to Naylor's Cash Store. Appellant made a motion to quash the *506 indictment on the ground that it was not alleged that Naylor's Cash Store was a partnership, individual or corporation. We are of the opinion that the motion was properly overruled. It would seem that the only purpose of naming Naylor's Cash Store was to correctly identify it and apprise appellant that he was charged with passing the forged instrument to said store.
Appellant admitted that he forged the check and that he passed it to Naylor's Cash Store. He said: "I am nineteen years old. I was in Atlanta on the date it was alleged the check was written and passed. I wrote the check. I passed it and got the money. I was in Atlanta and had some money coming. I was broke and I wrote a check and cashed it. Me and Clark. I was going to pay it back but they arrested me before my money came. Yes, Claude Clark and I were in Atlanta together. I was expecting my money to come in from Mrs. N. L. York, the mother of the other defendant. The money did not come in on Saturday. I don't know why it did not come. I intended to pay it back Monday. I thought that before the checks could get around to the bank I would have my money and pay them first. That is true, I thought that."
Appellant presented to the court a written requested instruction which read as follows:
"Gentlemen of the Jury: You are instructed that the gravamen of the offense with which the defendants are charged is the intent to injure and defraud. Wherefore you are instructed that even should you believe from the testimony that the defendant, C. Fleming, did pass as true the instrument alleged in the indictment yet if you further believe from the testimony that at the time he passed the same that he intended in good faith to repay the money he obtained from said check, or if you have a reasonable doubt as to this, then you will acquit both the defendants, C. Fleming and Doris York."
The refusal of the foregoing charge is complained of as error, it being urged that appellant's affirmative defense was embodied in said charge. The case of Duncan v. State,
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
In the indictment it is charged that the appellant passed a forged check for four dollars at Naylor's Cash Store. The indictment is assailed upon the ground that it is indefinite in failing to describe in more specific terms the recipient of the forged check. It is very plausibly argued that the term "Naylor's Cash Store" is not a very specific designation. Whether in an indictment charging the passing of a forged instrument it is necessary to state to whom the passing was made is a matter upon which the authorities in the various states of the Union are in conflict. This will be illustrated by the original and dissenting opinions in the case of State of Iowa v. Weaver,
In Riley's case, supra, it seems that the indictment charged the passage of a check to Charles Lowndes, who appears to have been the cashier of the First National Bank of Amarillo. The check was presented at the bank, but there a question of fact as to whether it was paid by Fuqua or by Lowndes, and the case was reversed because of the failure to submit that question to the jury. It is stated in the opinion by way of dicta that if the allegation had been that the check was uttered to the First National Bank of Amarillo, the averment would have been sustained by proof that it was cashed by either Lowndes or Fuqua. Persuasive of the accuracy of the views last expressed in the opinion mentioned are the following cases: Brown v. State, 60 Tex.Crim. R.; Reeseman v. State,
The other points raised in the motion have been fully discussed and properly disposed of in the original opinion.
The motion for rehearing is overruled.
Overruled. *509