*1 doing appeals. civil It erred court of so. ap- civil of the court of judgment reversed, remanded and the cause is
peals court for a new trial.
to the district JONES, Appellant,
John Texas, Appellee.
The STATE 49782.
No. Appeals Texas.
Court of Criminal
7,May Rehearing Motion For
On State’s 26,1977.
Jan. *2 years. presented are with inter-
four We important questions concerning esting and section of the New Penal Code. V.T.C.A., asserts that appellant Pe- 32.21 is unconstitutional nal Code Section require that a it does not because charged with knowledge that have argues that the facts in this case position. his says He that since illustrate being the check was without en- jury could have believed the dorsed not know the check was appellant did jury but could have believed forged, he intended defraud and harm Although the check unendorsed. and find that 32.21 stand- agree Section require knowledge that a alone does not ing writing, we do writing passed is a unconstitutional find the section to be However, the contention this reason. for raise issues that need careful consider- does ation.
V.T.C.A., per- 32.21 in Penal Code Section as follows: tinent reads “(a) purposes For of this section: “(1) ‘Forge’ means: alter, make, “(A) complete, exe- cute, any writing so or authenticate purports: another who did “(i) the act of to be act; not authorize at a time “(ii) have been executed sequence in a numberеd place case; fact than was in other original “(iii) copy of an to be Durham, Jr., Amarillo, ap- for D. James existed; when no such pellant. issue, transfer, register “(B) to Curtis, Atty., Dist. and Russell Bus- Tom of, publish, or otherwise pass, transfer Amarillo, Atty., Jim D. Vol- Dist. by, Asst. writing within utter lers, McAngus, and David Atty., S. State’s (A) meaning Paragraph of this Austin, Atty., for the State. Asst. State’s subdivision; or “(C) possess OPINION meaning of Para- within DALLY, (A) to utter it in a graph Commissioner. with intent (B) Paragraph manner a conviction for appeal is an from This subdivision. to defraud and forgery with the “(2) ‘Writing’ includes: another; punishment enhanced harm any other method of V.T.C.A., “(A) printing or provisions under information; recording 12.42(a) imprisonmеnt Code Section Ann.Stat., (Smith-Hurd, Supp. 17-3 coins, tokens, stamps, “(B) money, Pa.Stat.Ann., 1974); seals, cards, trade- badges, and credit marks; and mental defining states In value, “(C) right, privi- symbols of “intentionally or with intent” and “know- identification. lege, or knowledge,” or with ingly *3 Code, provides: 6.03 commits an offense if he Section “(b) person A or writing with intent to defraud forges a “(a) intentionally, acts or person A another.” harm intent, respect to the nature of with with or to a result of his conduct his conduct statutes section unlike former This objective or desire it is his conscious when V.A.P.C.) seq. permit would (Articles 979 et in the conduct or cause engage for thе guilty of an offense finding person a result. trans- transferring, registering the issuing, or with “(b) person knowingly, acts ut- of, publishing, or otherwise passing, fer knowledge, respect with to the nature of writing, though even that tering a or to circumstances surround- his conduct knowledge writing that person had no when he is aware ing his conduct The former statutes were held was nature of his conduct or that the circum- person a must know the provide that person knowingly, exist. A acts stances he was a instru- knowledge, respect with with a re- or guilty of before he could be found ment of his conduct when he is aware that sult g., it. E. Albrecht v. 486 reasonably conduсt is certain to cause his (Tex.Cr.App.1972); Haney 97 S.W.2d result.” (Tex.Cr.App.1969). S.W.2d For a in- When the Penal Code definition of the offense “intentionally with intent” and require words or penal other modern codes strument knowledge” with are con- “knowingly instru- or there be persuasively argued cannot be Law In- forgery. is a The American sidered ment of the Code, the use words “intent to defraud Modern Penal 224.1 that stitute’s Section 32.21(b) used in means or harm” Section reads: guilty to be of the offense a defendant “(1) person Definition. A “knowledge” he have must if, purpose to defraud or forged writing. passes is a anyone, or with that he injure injury to be fаcilitating a fraud or However, must also consider the actor: perpetrated by anyone, Code, provides: which 6.02 Section any writing of another “(a) alters “(a) Except provided Subsection authority; or his without section, (b) a does not com- of this executes, makes, “(b) completes, au- intentionally, an offense unless mit thenticates, any writ- issues or transfers knowingly, recklessly, or with criminal to be the act of ing purports so that engages in conduct as the def- negligence act, who did not authorize that requires. of the offense inition place executed at a time or to have beеn “(b) If the definition of an offense does sequence other than in a numbered state, a culpable a mental prescribe not case, copy of an in fact the to be state is nevertheless re- culpable mental existed; original when no such plainly dis- unless the definition quired “(c) any writing which he knows utters element. mental penses manner forged in a to be an offense does “(c) definition of If the (a) (b).” (Emphasis add- paragraphs state, but culpable mental prescribe not ed.) required under Sub- nevertheless one is section, intent, knowl- Law, (b) 170.05- section also N.Y. Sections See Consol.Laws, suffices to establish 40); edge, c. or recklessness (McKinney’s 170.30 (West); responsibility. Ill. criminal Cal.Penal “(d) pertinent part of the Culpable mental states are classi- indictment “ according degrees, alleges fied relative from . this case lowest, highest as follows: A.D., day February, the 5th on or about intentional; “(1) then there with ... did harm, by pass- forge, to defraud and “(2) knowing; Haile, writing as follows: ing Jerry reckless; “(3) ” photographic copy . and then a “(4) negligence. criminal appears the indictment. a check on “(e) higher degree culpa- Proof of bility charged proof than that constitutes clearly indictment fails to This culpability charged.” know- appellant passed check forged; fundamentally ing that it was it is provides that even if the defective. prescribe definition of an does culpable mental state a mental cause *4 judgment is reversed and the The unless required state is the definition of the remanded. dispenses plainly with a offense mental approved by the Opinion Court. culpable This section defines four state. states, Two of mental mental states. these knowledge,”
“with intent” and “with have OPINION issuing, application to the offense of trans- MOTION FOR of, ON STATE’S
ferring, registering passing, the transfer REHEARING uttering a publishing forged or otherwise assume, we instrument. Unless this we ROBERTS, Judge. do, kind unwilling are to that a of strict that the original held On submission liability was intended and that those who was funda- indictment in this case forged forgery pass are an instruments of failing allege that though mentally defective they offense even have no knowl- knowing it check appellant the the edge writing passed forged, is the this conclude that forged writing requires forged. of a We now two was states. one which mental The defendant to is not a fundamental defect appeal. the a commit offense of be for the first time on raised writing pass must it with that it statute, forgery of our pertinent having is as well as an intent 32.21, as reads or plainly defraud harm. This is follows: 6.02, 6.03, when Sections and 32.21 con- are “(a) purposes of this section: For together, as they strued must be. “(1) ‘Forge’ means: 32.21 When Section is so construed a seri- make, alter, “(A) complete, exe- question concerning is raised the ous indict- any writing so or authenticate cute which this ment under stands con- purports: question, victed. This if not sufficiently who did “(i) to act of another be the appellant’s as required raised brief act; authorize that not 40.09, 9, by Article Section Vernon’s Ann.C. a time “(ii) executed at to have been C.P., must be reviewed in the of interest sequence numbered place or in a provisions justice under the of Article case; fact than was in other 13, V.A.C.C.P. original of “(iii) copy be An not allege indictment does existed; original when no such defective, fundamentally offense and a transfer, issue, “(B) register under an conviction indictment that does of, pass, publish, or otherwise transfer be be- must reversed writing that is within utter the conviction is void. American cause meaning Paragraph (A) of this Corporation v. Plant Food subdivision; (Tex.Cr.App.1974). S.W.2d under writing that which constitute “(C) possess the acts Para- meaning knowl- imply requirement within in a (A) intent to utter it graph part of actor that edge on the (B) Paragraph However, manner cul- this this subdivision. mentioned in state nowhere pable mental ‘Writing’ “(2) therefore, includes: issue, is wheth- statute. “(A) printing other method which does not al- er a indictment information; recording implied requirement of lege this tokens, coins, stamps, “(B) money, is valid. cards,
seals,
badges, and trade-
credit
noted in
As we
Baldwin
marks; and
(Tex.Cr.App.1976):
S.W.2d
value,
“(C)
right, privi-
symbols
lege, or identification.
charges
“Ordinarily an indictment which
if he
commits an offense
“(b)
in the terms
the statute
an offense
intent to defraud
forges a
sufficient.”
another.”
harm
However, it is also well established that:
in our opinion оn
As we observed
always
to follow the
“It is not
sufficient
statute,
submission,
written, “would
There are cases
language of
statute.
permit finding person guilty
of an offense
require greater particularity, either
issuing, transferring, registering
for the
Legisla-
obvious
from the
intention of
of,
publishing,
other-
passing,
transfer
*5
known
application
the
of
ture or from
though
even
uttering
writing,
wise
Ann.P.C.,
law.”
principles of
1 Branch’s
knowledge
had no
that
the
that
ed.,
p. 496.
2d
Sec.
Ante,
page 773.
forged.”
at
writing was
State,
v.
128
also Lucero
502 S.W.2d
See
is, then,
question
does an indictment
State,
(case
(Tex.Cr.App.1973)
1); Bouie v.
the
this
language
drafted under
strict
of
Page v.
(Tex.Cr.Aрp.1975);
587
528 S.W.2d
sufficiently charge an offense?
statute
State,
(Tex.Cr.App.1976).
532
341
S.W.2d
the
it does not is
indictment funda-
Only if
State,
of
Standley
517
It seems clear from an examination
mentally defective.
v.
(Tex.Cr.App.1975);
American
Legislature
S.W.2d
Penal
the
our new
Code that
Corp.
Food
Plant
S.W.2d
concept
much
the
of
very
aware of
(Tex.Cr.App.1974).
care-
culpability and the delineation of four
states;
culpable
defined
mental
fully
the
reading of
statute reveals that
fact,
major changes
the
in our
this is one of
prescribes
single culpable
unequivocally
Commentary
the
See
Practice
new Code.
forgery:
statе for
This is the
mental
see,
V.T.C.A.,
Code,
6.03,
Penal
and
harm,
by to
Sec.
to defraud or
which is
Art.
1.07(a)(13);
Code,
(b)
V.T.C.A.,
of
Ten
Sec.
subsection
Section 32.21. See
Penal
amended;
V.A.C.C.P.,
(Tex.Cr.App. 21.15,
From this in- because principles known of is an element which is forged is cannot conclude strument implied statutory definition strongly ele- in the knowledge as essential require law possession forged officially of a issued “§ A written instrument Criminal 3. office, by public degree; public presump- or servant created instrument second in the instrumentality; governmental or or tioh tokens, public trans- person possesses Part of an issue two or A who more transfers, portation instruments, certificates or other arti- purports forged of which each designed for use as card, cles manufactured symbols as that term is defined in to be credit place money usable in of value pre- of section subdivision seven services; property purchase of or or possess sumed the same with duly physi- prescription aof 5. A licensed they forged and with intent to de- are person authorized or other to issue the cian same for fraud, injure another. deceive or any drug or instrumеnt or device possession forged of a 170.30 Criminal “§ taking drugs administering or in the used for which a degree in the first instrument required by prescription is law. possession person guilty of criminal A degree Forgery in the second is a class D when, degree instrument the first felony. it is and with Forgery degree first “§ 170.15 defraud, injure another, or deceive forgery person in the first A any forged possesses he utters or instrument when, defraud, degree with intent to deceive specified in section 170.15. of a kind another, falsely makes, injure he com- possession of a instrument Criminal pletes or alters a written instrument which felony.” degree C is a class first be, purрorts which is or become or to calculated to statute, at 38 completed: 4. The Illinois found Ill. represent if Ann.Stat., 17-3, money, stamps, reads as follows: se- 1. Part of issue valuable instruments issued curities or other Forgery 17-3. “§ by government governmental instrumen- when, (a) commits tality; or defraud, knowingly: intent to stock, an issue of 2. Part of bonds or in or appar- (1) document Makes or alters representing instruments other claims interests ently capable defrauding such against corporate organiza- other purports to have been made manner that it property. tion or its time, or with another or at another diffеr- Forgery degree in the first is a class C by authority provisions, of one ent who felony. give authority; or did not such possession “§ 170.20 Criminal of a (2) such Issues or delivers document degree in the third *7 knowing it been made or to have thus al- guilty possession person A of criminal of tered; or when, degree forged a instrument in the third Possesses, (3) intent to issue or with deliv- forged that it is with and knowing er, any it to have such document defraud, another, injure deceive intent thus or altered. been made forged possesses he utters or a instrument. (b) An to defraud means an intent inten- forged possession of a Criminal instrument assume, create, tion to causе another transfer, degree in is a class A the third misdemeanor. any right, obliga- or terminate alter possession “§ Criminal of a any person power with reference tion degree in the second instrument property. possession of criminal of A capable (c) apparently A de- document degree in the instrument second includes, frauding to, but not limited when, it is that deceive or and obligation any right, defraud, one which injure an- with intent to other, any person prop- power with reference to possesses any forged in- he utters or transferred, created, may erty altered or be in of a kind sеction 170.- strument terminated. (d) possession Sentence. of a Criminal felony. felony.” degree Forgery in is a class D 3 the second is Class on allege knowledge is not us ure to before in an forgery, hold that its absence appeal. may raised is a matter which be indictment but not be raised quash, motion to by a Next, error grounds we turn to com after trial has for the first time summary appellant’s in brief. raised compare Melley v. menced. and See necessary discussion the facts Ship 522, (1923); Tex.Cr.R. S.W. 367 grounds. these 278, Tex.Cr.R. 208 S.W. ley v. Omitting parts, indictment the formal (1919). 5, February 1974, Potter alleges that on in alleges the offense Texas,
This indictmеnt John Jones did then and County, statute, harm, including req- language “with to defraud and there Haile,5 writing motion to Jerry There was no forge, by passing uisite intent. Therefore, the fail- the i:ndictment. follows: quash as charged him as set forth in the “AND THE GRAND JURORS pri- present do further paragraph hereof . AFORESAID first . aforesaid or to the commission Jerry witness was Don first The State’s to-wit, Jones, on by the said John Hale, liquor of a operator owner and A.D., 1968, September, in day the 6th County. He testified that Potter store County, Court of Potter the 47th District 1974, appellant entered February on Texas, on the number 13480 in cause and, exchange liquor and his store court, the said John Jones docket of said repro- cash, check which is gave him the Jones, of John Arthur under the name was The check in the indictment. duced in said last duly legally convicted and not endorsed. felony, Assault of a to-wit: named court testified he was D. M. Newton Malice, to Murder Without With Intent Enterprises in Greater Southwest partner pending then legally an indictment upon had of 19746 he early which named court and of in said last *8 appel- The appellant to stack lumber. hired con- jurisdiction; and said court had said day, paid and Newton worked for one lant was a conviction and viction was final in the wоrk at appellant for his cash by the for an offense committed conviction day. that Newton testified Jones, the him, prior John to end the said day but agreed to work next appellant the offense hereinbefore commission of day” “thought” was spelled that the “exact 6. Newton complainant’s name is Hale The 4, 1974, completely February cer- transcription reporter’s notes. but was the court tain.
779 32.21, appear. page did not Newton identified the Sec. is set out on the first of this passed Jerry Don opinion reproduced check Hale as one of and will not be here. chеcks, company’s his but denied that the testimony D. of M. Newton was suf- at the bottom signature of the check was show, required by ficient to as subsection his and also denied that he had authorized (a)(l)(A)(i) 32.21, of Section that the check anyone sign his name for him on the it purported was made so that to be act his company’s checks. He also testified that and that he did not authorize that act. company’s checks were ordinarily testimony show, Hale’s sufficient to signed by partner (and brother) him and his (a)(1)(B) required by subsection of Section Newton, partner signing C. E. with his 32.21, passed. check was Hale’s signature first of the two lines. require inadvertent failure to an indorse- significant is neither ment nor relevant in by Newton then testified that he was told establishing charged. the offense This con- secretary at the Midland National Bank tention is overruled. passed. the check had been At that time he looked in his checkbook and found Appellant next contends checks, including passed that three the one forgery statute is unconstitutional and in by appellant, missing. were He stated that process violation of due because it does not always kept the checkbook in pickup his require knowledge that the instrument was appellant and that had been in the forgery Our statute requires that: pickup on day appellant worked for “A commits an forges offense if he Newton. He also stated that on one occa- writing with intent to defraud or harm day sion that (along with an- Y.T.C.A., Code, another.” Penal 32.- Sec. temporary worker) other had been alone in 21(b). This is sufficient to establish mens while pickup present Newton was not thereby rea to satisfy process due pickup. inside the regard. See Sec. 6.02(e),as well as the Practice
Finally,
Commentary
Newton testified that he never
6.02,
State,
check,
King
and see
v.
gave
otherwisе,”
“payroll or
to the
651,
(Tex.Cr.App.1975),
S.W.2d
where
appellant.
gravamen
that “the
is stated
Appellant’s first contention is that
injure
offenses is the intent to
or defraud.”
the evidence is insufficient to show that C.
Appellant’s contention is overruled.
Newton,
E.
D.
partner,
M. Newton’s
did not
Finally, appellant contends that he
sign
Appellant
the check.
argues that C. E.
is entitled to credit for time he served in
Newton,
partner,
as a
authority
had
to bind
jail
prior
sentencing.
after his arrest but
partnership
signed
and could have
D. M.
agrees,
2,
citing
The State
Art.
Newton’s name to the check. C. E. Newton
(as amended,
Vernon’s Ann.C.C.P.
effective
testify.
did not
27, 1973).
August
unequivocal
D. M. Newton’s
testimony
2 of Article
provides:
42.03 now
no
had authority
sign
one
his name
“In all
judge
the checks of Greater
Enter-
criminal cases the
Southwest
prises is sufficient to show
court in which the defendant was convict-
that C. E. New-
give
authority.
ton did not have this
Rice
ed shall
the defendant credit on his
See
v.
State, 484
sentence for the time that the
(Tex.Cr.App.1972);
S.W.2d 589
defendant
cause,
State,
spent
jail
Ware
has
said
from the
(Tex.Cr.App.
S.W.2d
1972).
time of arrest and confinement until his
Cf. Reed v.
cause
could not be
as a
instrument.
Appellant was sentenced on June
statute, V.T.C.A.,
Code, 1974,
after the
the amend-
*9
effective date of
require knowledge
2 of
42.03. The
The
does not
to
Article
statute
ment
the trial judge
reflects that
refused
record
the instrument
was
It
that
credit
time he
appellant
any
to
the
give
provide
that the
does
transfer of
prior to sentence. The sen-
spent
jail
in
within
comes
the
forged instrument
defi-
to
reformed
show that credit
tence must be
A
commits
forgery.
an
nition
jail
spent in
after he was
given
is
for time
32.21(b),supra, if he
offense under Section
42.03,
2, supra;
Art.
Guerra
arrested.
to
forges writing
with intent
defraud or
State, supra.
v.
harm another.
However,
clearly
record does
re-
the
not
authority
was within its
Legislature
appellant was arrested in
when the
flect
defining
repealing
in
the offense and
the
must
This date
be determined
this cause.
in the former Code. It has
statutes
upon receipt
in the trial court
of this
pass
is unlawful to
provided that
mandate,
after which
Court’s
forged with
is
intent
instrument
that
from
credit
date as
given
be
that
shall
though
person passing
even
the
the
defraud
by Article
Section 2. See
it is
is unaware
State, supra, at
v.
note 4.
Guerra
that he intends to defraud with
provided
Rehearing
Motion for
wrongful
The State’s
This is the
con-
that instrument.
reformed,
judgment
is af-
granted. As
Legislature
authority
has the
duct
need,
firmed.
penalize. There is no
cause or
element to
justification to add an
the of-
OPINION
CONCURRING
ON STATE’S
provided
for in the statute.
fense
FOR
MOTION
REHEARING
A
mental state
intentional
DOUGLAS, Judge.
indictment
alleged
when
alleged
with “intent to defraud and
the act
in the affirmance
I concur
of the convic-
Y.T.C.A.,
complies with
harm.” This
hold that
tion,
would
the indictment is
but
Code,
6.02 and 6.03.
Sections
statute even if
sufficient under
exception
to or motion to
there had been
In
laws of the 1925 Penal Code knowl- forged an instrument was before edge that be convicted as
one could expressly statute was re- That
instrument. code. by penal new
pealed
Y.T.C.A., 1.03(a), pro-
vides: “(a) not constitute of- Conduct does McCONATHY, Appellant, Richard by unless it defined as an
fense statute, ordinance, municipal order of a court, county commissionеrs or rule au- Texas, Appellee. The STATE adopted lawfully and under a thorized No. statute.” alleges an offense under The indictment Appeals Texas. of Criminal Court forgery statute. 15, 1976. Dec. OPINION ON STATE’S DISSENTING REHEARING
MOTION FOR
ODOM, Judge. majority’s disposition to the
I dissent my knowledge opinion In
this case. instrument was is an essential of forgery
element under the mode of pros- in this case. In the absence
ecution of such requirement, the innocent of a payment check received in a felo- recipient if the no
ny even has the check was I dissent Y.T.C.A., construction of
such a Penal Code 32.21, and adhere to the reasoning set opinion Court’s on sub-
out
mission.
Furthermore, I plu- observe that the new asserts, Legislature
rality did not “[T]he
intend to include that the instru- forged an essential
ment was element then, forgery,” offense of contra- fashion,
dictory pronounces, later “[K]now-
ledge that the instrument is strongly implied
element which
statutory forgery. definition of . .” . element, plurali- according new to the
This suddenly upon arises a motion to
ty, quash. knowledge either is an element or is
Such element; ground. no middle there is