95 S.W. 120 | Tex. Crim. App. | 1906
Appellant was convicted of forgery, and his punishment assessed at two years confinement in the penitentiary, hence this appeal.
Inasmuch as the sufficiency of the indictment is questioned, we will quote the charging part thereof, as follows: that appellant * * * "did then and there unlawfully, without lawful authority and with intent *178 to injure and defraud, did wilfully and fraudulently make a certain false instrument in writing, purporting to be the act of Pedro Moncibayes, which said false instrument is to the tenor as follows: `Mr. J. Hixson' (meaning Mr. B.M. Hixson (`Pleas (meaning please) `pay to Manuel Rubio $10.00 Dollales' (meaning Ten Dollars), `and oblige Yours
Pedro Monoconies' (meaning Pedro Moncibayes.)
`Aug. the 25th, 1905.'
against the peace and dignity of the State."
The contention of appellant is that the indictment did not allege an offense. We understand the insistence is that innuendo averments simply to the effect that J. Hixson means B.M. Hixson, and Pedro Monconies means Pedro Moncibayes, do not bear such meaning on their face, and innuendo averments do not apply to the use of these names. Mr. Bishop says, "An innuendo averment is an explanatory averment of the meaning. It charges no fact and does not admit of being sustained by evidence." 2 Bishop Criminal Procedure, section 793. 2 Wharton on Crimes, section 660, defines: "An innuendo is an interpretative parenthesis thrown into quoted matter to explain an obscure term. It can explain only where something already appears upon the record to ground the explanation; it cannot, of itself, change, add to, or enlarge the sense of expressions beyond their usual acceptation and meaning. It can interpret but cannot add." He then proceeds to give certain illustrations. The insistence is that the pleader should have used instead of innuendo averments explanatory or extrinsic averments, showing the situation of the parties relative to each other. It occurs to us that there can be no question that the instrument set out, without any innuendo averments, imports an obligation, and as such is the subject of forgery without any explanatory averments. Said instrument did not require explanatory averments, as in Cagle v. State,
We believe that the circumstances in evidence sufficiently prove the allegations in the indictment. The evidence was to the effect that Pedro Moncibayes was a real person, and stayed with appellant during his visits to Kerrville, and during the time was working for B.M. Hixson. Indeed, appellant's defense was that he was authorized to draw the check in question by Pedro Moncibayas on B.M. Hixson, on account of a debt which Moncibayes owed him (Manuel Rubio) on account of board and work his wife had done for him during his stay with them. Of course, this was disproved by the State; Pedro Moncibayes testifying that he did not authorize the execution of the instrument.
Appellant urges that the case should be reversed because of the *180 conduct of the private prosecutor, B.M. Hixson, who is shown, according to the evidence, to have deceived defendant with reference to the whereabouts of Pedro Moncibayes, leading him to believe that said Pedro Moncibayes had fled the country, when said witness at the time was under the supervision of said Hixson, who had him present at court in order to testify. This may have been a good cause for continuance or postponement of the case at the time, if this matter had been urged as a surprise, but this was not done. Consequently the case cannot be reversed on this account.
There being no error in the record, the judgment is affirmed.
Affirmed.
Brooks, judge, absent.