57 S.W. 840 | Tex. Crim. App. | 1900
Lead Opinion
Appellant was convicted for forgery, and his punishment assessed at confinement in the penitentiary for a term of two years.
The State was permitted to prove by Mrs. Huffmaster that Chestnutt, appellant's principal, made a new contract in regard to the piano subsequent *109 to the alleged forgery, by virtue of which contract Mrs. Huffmaster and her husband executed new notes for the purchase price of said piano. Defendant was not present when the new contract was signed. Objections were urged on the ground that he was not present, and that this settlement was an indirect method of getting before the jury the opinion of Chestnutt and Mrs. Huffmaster that the note declared upon was a forgery. We believe that this testimony was not admissible, but further believe that it is not of such prejudicial character as to require a reversal. It is an undisputed fact, under the testimony, that the note declared upon was a forgery. Mrs. Huffmaster testified, as did her son, that it was a forged instrument. Defendant offered no testimony. Before executing the new contract, Chestnutt and Mrs. Huffmaster visited appellant in jail, taking with them the forged note. The result of this visit is not stated, but the new contract was then made; Mrs. Huffmaster retaining the piano. The admission of irrelevant or inadmissible testimony will not require a reversal unless its effect upon the defendant's case was probably injurious. The jury gave appellant the minimum punishment, and his guilt is placed beyond question. If the punishment allotted had been above the minimum, this error would have required a reversal, for in that event its operation might have been prejudicial.
The court charged the jury as follows: "If you believe from the evidence, beyond a reasonable doubt, that D.L. King, defendant, in Tarrant County, Texas, on or about the 6th of January, 1899, without consent or lawful authority of Mrs. M.I. Huffmaster, and with intent to injure or defraud, did make and sign the note or instrument in writing alleged and set out in the indictment read to you in this case, then notwithstanding the fact that Mrs. M.I. Huffmaster at said time was a married woman, and notwithstanding the further fact that said instrument in writing was not stamped with a United States revenue stamp, you will find defendant guilty as charged." The objections urged are (1) that the evidence showed that Mrs. Huffmaster was a married woman, and on such proof it was the duty of the court to instruct an acquittal; and (2) the instrument, not having been properly stamped, was not the subject of forgery. It is not necessary, in case of forgery, that the forged instrument be stamped. See Thomas v. State,
There was no error in refusing a continuance. If, in fact, Mrs. Huffmaster told Mrs. Crosby, or John McClain, or Mrs. Payne that she paid more for the piano than was in fact agreed to be paid, it would make no difference. She admitted making statements to the effect that the piano was a $400 piano, or perhaps cost $400, when in fact she only paid $275. But how this could affect the forgery of this note is by no means clear. If she had agreed to pay $400, or so stated, it would have been no excuse for the forgery, and no evidence of the fact, under this case, that the instrument was not forged. There is no contradiction of the forgery. As presented, there is no such error in the record as requires a reversal of the judgment, and it is affirmed.
Affirmed.
Dissenting Opinion
The court instructed the jury, in effect, that if they believed that defendant, without the consent or lawful authority of Mrs. M.I. Huffmaster, and with intent to injure and defraud, made or signed the note or instrument in writing, etc., then, notwithstanding the fact that said M.I. Huffmaster at said time was a married woman, etc., to find him guilty. The note in question, upon which the forgery was predicated, was a promissory note in the ordinary form, for $75, expressing as a consideration therefor that it was in part payment for a piano, and signed, "M.I. Huffmaster." The proof showed, without controversy, that M.I. Huffmaster was at the *112
time of the execution of said note a married woman, living with her husband. A majority of the court believe that said note is the subject of forgery, and have so announced. Their opinion does not appear to be predicated upon the statute, but upon the definition of forgery at common law, and a number of common law authorities are cited in support of their views. While in the opinion it appears to be conceded that a writing invalid on its face can not be the subject of forgery, because it has no legal efficacy to effect the fraud, yet the distinction seems to be drawn between an instrument valid on its face and one that is invalid; it being held that the invalidity of an instrument can not be shown by extrinsic facts. My brothers appear to quote with approval, as applicable to this case, from the common law authorities, as follows: "It is not necessary to the offense that the instrument should be one which, if genuine, would be a binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the paper, to relieve from the character of forgery." This is all, no doubt, good law, as applicable to forgery at common law, but I do not believe that it has anything to do with our statute; and herein, it occurs to me, lies the difficulty. The definition of forgery at common law is as follows: "Forgery is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability." 2 Bish. Crim. Law, p. 523; 13 Am. and Eng. Enc. of Law, p. 1088. Our statute (article 530, Penal Code) defines forgery as follows: "He is guilty of forgery who, without lawful authority and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever." Article 537 provides: "By an instrument which would `have transferred or in any manner have affected' property, is meant every species of conveyance, or undertaking in writing, which supposes a right in the person purporting to execute it, to dispose of or change the character of property of every kind, and which can have such effect when genuine." Now, it will be observed that there is a radical difference between the two definitions. At common law the instrument, to be the subject of forgery, was required to be of apparent legal efficacy to affect property, while our statute requires that it must be such an instrument as, if genuine, would actually create legal liability. When we have a statute on the subject which is plain and unambiguous, I know of no rule which authorizes or even permits us, in order to make an offense, to appeal to the common law. On the contrary, we are inhibited from going beyond our own Penal Code to determine what are offenses. Arts. 1, 3, 9, Penal Code. Now, measuring this question by the definition given by our penal Code, the question presents *113
itself, did the instrument, when it was shown by evidence to be the act of a married woman living with her husband, create any pecuniary obligation? That is, would it have bound her, or, as for that matter, any one else, if it had been her genuine act? The question of liability of married women on contracts made by them has been before our Supreme Court in various forms, but we know of no case in which a note such as that involved in this case has been held to be binding on the wife. Certainly, in the absence of extrinsic facts showing that such note was for necessaries, or on account of her separate estate, it would not be held valid, and could neither be enforced at law nor in equity against the wife. Hollis v. Francois,