162 S.W. 879 | Tex. Crim. App. | 1913
Lead Opinion
Appellant was prosecuted and convicted of forgery.
The record contains neither a statement of facts, nor any bills of exception, but a motion in arrest of judgment was filed vigorously attacking the indictment, and an able brief has been filed, presenting this ground alone for review. Omitting the formal parts the indictment reads: That appellant "without lawful authority and with intent to injure and defraud, did wilfully and fraudulently make a false instrument in writing purporting to be the act of another, to-wit: the act of H.W. St. John, Treasurer of the Aetna Life Insurance Company, of Hartford, Connecticut, which false instrument is to the tenor following:
Received from John Johnston, Agent, the sum of Eleven Hundred and *629 Eighty Dollars being one Annual Premium, on Policy No. 1,570,851 for Rev. W.A. Lamb-Campbell, Ins'd.
Next Premium Due January 21, 1914.
H.W. St. John, Treasurer C.
said instrument in writing containing impressed upon it the purported seal of the Aetna Life Insurance Co., of tenor following:
The contention is that this receipt is not such an instrument upon with forgery can be based, without extrinsic averments; that there is no allegation showing whether the Aetna Life Insurance Company is a company, corporation or individual; that there is no averment showing the connection of H.W. St. John with the Life Insurance Company; or that he had authority to execute such an instrument. It was not necessary to allege whether or not the Life Insurance Company was a corporation. Reeseman v. State,
The judgment is affirmed.
Affirmed.
Addendum
Appellant in his motion for a rehearing earnestly insists, that while the instrument in this case under proper averments would be the subject of forgery, yet, that it is "an ordinarily receipt," as he terms it, there must be extrinsic averments showing how and in what manner it might become possessed of capacity to defraud, outside of the receipt itself. This is only true in those instances where the instrument does not on its face show that it would create a pecuniary obligation. In this case, the instrument, if true on its face, would create a legal obligation on H.W. St. John to pay The Aetna Life Insurance *630 Company the sum of $1180. Suit could be instituted on it, and if shown to be true, on it and it alone the company could recover judgment against Mr. St. John, and under such circumstances no other averments than those contained in the indictment were necessary. If he received the money as treasurer of the company named as an annual premium on policy issued to appellant, he would be liable to the company for the money. Fonville v. State, 17 Texas Crim. App., 368. The cases cited by appellant state no other or different rule, as they were rendered in cases where the liability did not appear as a matter of law on the face of the instrument, but if any of them should seemingly do so, then on that point they are overruled.
The motion for rehearing is overruled.
Overruled.
