211 S.W. 219 | Tex. Crim. App. | 1919
Lead Opinion
This conviction was for forgery under Article 947, Branch's Ann. P.C., p. 882.
This article provides, as applicable to this particular indictment, that any person who in any way aids, assists, advises, or encourages the false making, altering, forging, or counterfeiting of any certificate, filed notes, returns, survey, map, plat, report, order, decree, record, patent, deed, power of attorney, transfer, assignment, release, conveyance, or title paper, or acknowledgment, or proof of record, or certificate or record belonging to or pertaining to any instrument or paper, or any seal, official or private stamp, scroll, mark, date, signature, or any paper, or any evidence of any right, title, or claim, etc., in relation to or affecting lands or any interest in lands in this State, with the intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title to lands or any interest in lands, or to prosecute or defend a suit, or aid or assist any one else in presecuting or defending a suit with respect to lands, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owners of lands, or with any fraudulent intent whatever, shall be deemed guilty of forgery.
Under this article it would be necessary for the pleader to allege, as applicable to this indictment, that appellant aided, assisted, advised, or encouraged, etc., the false making of the instrument declared upon with the intent to make money or other valuable thing thereby, or with intent to do some of the things further enumerated in the article. Usually, in indictments for forgery, it is sufficient to make the general allegation that the forgery was committed with intent to injure or defraud, and it would be immaterial what the forgery or defrauding would be, or who it would defraud. But the reading of this statute deviates from that general rule, and provides specifically the intent and purposes with which the forgery, or the inhibited things may occur. It must allege one of the intents or purposes inhibited by the statute as a prerequisite to the defrauding. This would not be true under the general statute of forgery, but it is under this statute, because the Legislature saw proper to specifically enumerate the means, manner, purposes and intents by which such fraud shall or must be consummated. This has not been done in the indictment as we understand its reading. Omitting formal parts, the indictment charges appellant "with intent to injure and defraud and without lawful authority, did aid, assist, advise and encourage the false making and forging and affixing of fictitious and pretended signatures, by some person or persons, whose names are to the grand jurors unknown, to a certain instrument, to-wit. a deed, purporting to be the act of M.T. Nix," and something like fifty others. Then following the deed and general specification of the land, with the habendum clause. At the end of *202 the signatures is the acknowledgment before W.B. Dennis, a Notary Public in and for Bexar County, Texas, which certifies that M.T. Nix, for himself, and by power of attorney in fact in and for the other named parties, naming them, "for ourselves, known to me to be the persons whose names are subscribed to the foregoing instrument, and they acknowledged to me that they executed the same for the purposes and considerations therein expressed." Then follows another clause in the indictment alleging that the signatures were fictitious and were not signed by M.T. Nix and the other named parties.
It will be noticed from the reading of the indictment that it does not specify for what purpose appellant had advised the execution of the deed, or with what intent he had this done. There is, in a general way, a statement to the effect that it was intended to convey to him an interest in the land, but there is no specific allegation such as is required by the statute. This, we, think, should have been alleged in order to comply with the legislative enactment. It may be further observed in this connection that Nix appeared before Dennis, the notary public, and there are statements in the acknowledgment to the deed that the other parties did. The acknowledgment states that Nix appeared in person and by power of attorney, and acknowledged he executed this deed for the purposes and considerations, etc., and the notary public certifies further that they were known to him to be the persons whose named were subscribed to the instrument, and he took their acknowledgment to the fact that they executed the same for the purposes and consideration therein expressed. If this acknowledgment is to be taken as a part of the indictment, and it is alleged as a part of it, then Nix was certainly not an unknown person to the grand jurors at the time and was not a fictitious person. The indictment is contradictory within itself. The allegation in the indictment would not be authorized, that some person or persons to the grand jurors unknown signed these fictitious names, when as a matter of fact the deed itself declared to be a forgery, shows upon its fact that it was executed by Nix, if not by all the other parties, as evidenced by the acknowledgment before a notary public. This leaves the indictment in an incongruous and uncertain shape, to say the least of it. If upon the hearing of the case before the jury it should have developed that Nix did in fact sign the instrument of his own will, or at the instigation of appellant, and signed his name to it, he would not be unknown to the grand jurors, and if he signed the names of the others the grand jurors had evidence before them, or could have had by reasonable diligence, that Nix signed his own and the other names to it; at least the indictment leaves it in that shape without averments covering these discrepancies. Wherever the grand jurors could know by reasonable diligence the names of the parties to this instrument and that they were not fictitious, then proof of this *203 upon the trial would vitiate the indictment. This has been the rule at least since Jorasco v. State, 6 Texas Crim. App., 238, and Jorasco v. State, 8 Texas Crim. App., 540.
There is one other bill of exceptions which will be noticed. It recites the testimony of several jurors to the effect that they discussed the failure of the defendant to testify on the trial. Nine of the jurors, it seems, testified, and it is agreed the absent three would have testified to the same fact had they been present. This would necessitate a reversal of the judgment.
There are many other matters arising upon this record and presented by bills of exception, but they may not occur upon another trial as here presented, and some of them can not be considered in the absence of the testimony, there being no statement of facts accompanying the transcript. Some of the matters present very interesting and serious questions, and it is to be regretted that the able counsel who defended in the trial court did not present the case before this court either by oral argument or brief, but as we understand the record the questions passed upon would be fatal to the conviction.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
PRENDERGAST, JUDGE, absent.
Addendum
In a motion for rehearing the State contends that the original opinion was erroneous in holding the indictment insufficient to charge the offense therein set forth. Upon further reflection the majority of this court have reached the conclusion that that portion of the opinion was incorrect, and the further conclusion that the indictment sufficiently charges the offense. The reporter will copy the charging part of the indictment.
In accord with the views of the majority that portion of the original opinion will be modified and reformed, and the indictment held sufficient.
Upon the remaining grounds set forth for reversal, the original opinion will stand as being correct. To meet the views of the majority the original opinion is modified and reformed so as to hold the indictment sufficient.
To this extent the State's motion for rehearing is granted, and in other respects it is overruled.
Overruled in part. *204
