131 S.W. 585 | Tex. Crim. App. | 1910
This is the third appeal of this case. On the last trial from which this appeal is prosecuted, had in the District Court of Caldwell County on the 10th day of November, 1909, appellant was convicted and his punishment assessed at confinement in the penitentiary for a period of three years.
The important question for decision in the case is as to the sufficiency of the indictment which is assailed from many angles, and as related to this perhaps the most important question is whether any indictment could be predicated on the instrument alleged to have been forged. As the decision may become important in the future as a precedent, we set out the indictment in its entirety. It is as follows:
"The grand jurors, for the county of Caldwell, State aforesaid, duly organized as such at the October term, A.D. 1909, of the District Court for said county, upon their oaths in said court present that on or about the 10th day of June, A.D. One Thousand Nine Hundred and Eight and anterior to the presentment of this indictment, in the county of Caldwell and State of Texas, R. Jacobs and Sons was then and there a firm composed of the following members, to wit: R. Jacobs, J.G. Jacobs and Leon Jacobs, the said firm then and there being engaged in the mercantile business and having for sale goods, wares and merchandise for cash and on credit; and that Harvey Roamell did then and there have credit with said firm as aforesaid and that on or about the 10th day of June, A.D. 1908, Isaac Forcy, alias Will Jones, did then and there unlawfully, wilfully and knowingly and fraudulently pass as true to the said R. Jacobs, a member of said firm aforesaid, thereby passing to said R. Jacobs and Sons a false and forged instrument in writing which had theretofore been made without lawful authority, and with intent to injure and defraud and was then of the tenor following:
"`June the 10, 1908 to Mr. R. Jacobs sons please fill this oder for me 17 $ 35 c Harvey romal.' *209
"That in said false and forged instrument aforesaid, if true, the term `Mr. Jacobs and Sons' was intended for and meant R. Jacobs and Sons; that the word, to wit: `oder' in said instrument aforesaid was intended for and meant the word `order;' that the figures and characters, to wit: 17 $ 35 c in said instrument aforesaid was intended for and meant ($17.35) seventeen and 35/100 Dollars of the value of seventeen and 35/100 Dollars; and the name, to wit: `Harvey romal' in said instrument was intended for and meant the name `Harvey Roamell,' all of which the said instrument aforesaid, if true, meant and was intended for an order from Harvey Roamell aforesaid upon R. Jacobs and Sons aforesaid in favor of the bearer thereof then and there the said Isaac Forcy, alias Will Jones, whereby the said R. Jacobs and Sons should deliver goods, wares and merchandise to the value of $17.35 to the bearer of said instrument in writing as aforesaid then and there Isaac Forcy, alias Will Jones, and the said Harvey Roamell then and there becoming liable in payment therefor to said R. Jacobs and Sons and which said instrument in writing, the said Isaac Forcy, alias Will Jones, then and there well knowing to be false and forged did then and there pass the same as true with intent to injure and defraud against the peace and dignity of the State."
On the trial it was shown that the firm of R. Jacobs and Sons was composed of R. Jacobs, J.G. Jacobs, and Leon Jacobs, and that they were engaged in the mercantile business in the town of Luling, in Caldwell County, Texas, and that I. Mason was a clerk employed by said firm on the 10th day of June, 1908, when the transaction occurred out of which this prosecution grew. That on this day appellant, Isaac Forcy, came into the store of R. Jacobs and Sons and represented himself as Will Jones, and presented to them the written order copied in the indictment, representing to R. Jacobs that it was an order given on the firm of R. Jacobs and Sons by Harvey Roamell. It appears that Mr. Jacobs of that firm was unable to read, and thereupon handed the order to Mr. Mason with instructions to fill same, and that same was filled, and appellant received the goods, wares, and merchandise to the value of $17.35, and that the amount of the order was charged to Harvey Roamell. It was shown that Roamell had not signed the order in question, nor had he authorized anyone to sign his name to same, and that he had never seen such an order, and further, that he had credit with R. Jacobs and Sons, and that he did not even know appellant.
While many special objections were made to the sufficiency of the indictment, we think the substantial question in the case is, could this instrument be the subject of forgery? If this is answered in the affirmative, we think the allegations in the indictment sufficiently explanatory of the purport of the instrument and of the fact which would give it validity. There is in the books much curious learning *210
on the subject of forgery, and the office of the tenor and purport clauses in the indictment for this offense have been refined upon by courts until it is sometimes difficult for one to grasp and comprehend the office of either, and these refinements have sometimes, it seems to us, gone to the extent of overshadowing and dwarfing the substance of the matter required to be alleged. What instruments may be the subject of forgery has also quite frequently received judicial interpretation. These instances and illustrations are numerous and not always wholly consistent. We think in later times the niceties of pleading in prosecutions for forgery have not always been recognized; that the trend of modern decisions is to look rather to the substance than to the form that such instruments may take. We can not be unmindful of the fact that with the progress of civilization and the frequency in commerce with which business is transacted by notes, bills, and letters of credit, that it is essential to the protection of the citizen and the integrity of commerce, that a reasonable and sensible rule in prosecutions for forgery should be established. In olden times trade was either a matter of barter or for money in hand. In these times, as we know, but a small percent of commercial transactions are carried on and completed in any other form than by note, bond, checks, orders and drafts. While having due regard for the safety of the individual citizen who may be prosecuted for forgery of any of the manifold instruments conveying or undertaking to convey moneys and property, it is essential that at least some fair regard shall be had to the protection of the great body of our people who are interested in the honesty and integrity of these instruments. It has everywhere been held, under any view that may be taken of the case, that an instrument void on its face can not be made the subject of forgery. Such was the case of Howell v. State,
The true rule on this subject is thus tersely stated by Judge Hurt in the case of Fonville v. State, 17 Texas Crim. App., 368: "Again, it is not required that the instrument, if true, should in fact discharge or defeat the obligation; it will be the subject of forgery if its tendency is such." We have found no better statement of the general rule than that contained in the 13 Eng. Am. Ency. of Law, p. 1093, where it is said: "An instrument which is void on its face is not as a general rule the subject of forgery, because it has not the capacity of effecting fraud. The rule, however, is subject to this qualification: that if the instrument does not appear to have any validity or show that another might be injured by it, but extrinsic facts exist by which the holder might be enabled to defraud another, then the offense is complete and an indictment averring the existence of the extrinsic facts will be sustained." Now, we know that in this case the instrument was the means of defrauding R. Jacobs and Sons. In view of the conditions existing at the time it *213
was well designed to have this effect. R. Jacobs and Sons were merchants and doing, as the facts show, a credit business. Harvey Roamell had credit with them. Appellant by his own conduct construed this instrument to be an order on R. Jacobs and Sons for merchandise. This, in view of the situation of the parties, was the only construction that could intelligently be given to the instrument. While not in terms made payable to bearer or to appellant, it is in effect an order payable to bearer in that from the fact that Roamell sent it, it is certain that the goods were not to be delivered to him, and the order could be made effective only by delivering the merchandise to the person presenting the order. It was, therefore, to all intents and purposes an order payable to bearer. That it was an order for goods and not for the payment of money, is a fair inference not only from the situation of the parties, but from the nature of the instrument itself. We think that anyone could understand that where an instrument such as this comes to a merchant with the request to fill an order, that it would not be understood to be a request to pay money, and when this is interpreted in the light of the fact that R. Jacobs and Sons were merchants and not bankers, it becomes even more apparent. Again, it is suggested that there is no promise or obligation in the instrument itself on the part of Roamell either to pay the money or to make himself responsible therefor. The answer to this is that it is well settled in this State, and, indeed, is the universal rule founded on the most obvious equity, that where one surrenders property or pays out money on request and for the benefit of another, that the law implies a promise and obligation of payment. Broad v. City of Paris,
2. Again, it is averred that there is a variance between the instrument set out in the indictment and the one produced on the trial. This matter is not presented in such manner as to be the subject of review. The instrument made the subject of forgery is set out in haec verba in the indictment. In the statement of facts we find the following: "The instrument alleged to have been forged was then offered in evidence and identified by I. Mason and that said firm of R. Jacobs and Sons was doing business on the 10th day of June, A.D. 1908, in Luling, Caldwell County, Texas."
There is also a bill of exceptions in the record reciting the fact that "appellant requested the court in writing to affirmatively instruct the jury to acquit the defendant on the ground that the evidence fails to support the allegations in the indictment (all of which more fully appears in the defendant's motion to instruct the jury to acquit) and the court after considering said motion overruled the same." In the absence of any description of the instrument in the statement *214 of facts different from that as set out in the indictment or a finding of the court to the effect that there was a variance, we would not be authorized to presume such variance from the mere statement of the claim that there was such in motion for new trial. It has been many times held that a mere statement of a fact in motion for new trial or in bill of exceptions is not the equivalent of finding that the fact so stated is true.
We have been much interested in the discussion of the questions involved by counsel for appellant. They have exhausted the authorities on the subject, but after a careful study of this matter, and a very careful consideration of the case we have come to the conclusion that the appeal is without merit, and that the judgment of conviction ought to be affirmed as it is now done.
Affirmed.
McCord, Judge, not sitting.
[No motion for rehearing filed November 11, 1910. — Reporter.]