43 S.W. 83 | Tex. Crim. App. | 1897
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.
The first question presented is as to the validity of the indictment; that is, whether there is repugnance or variance between the purport and tenor clauses thereof. The charging part of said indictment is as follows: That W.L. Thulemeyer "did then and there, without lawful authority, and with intent to injure and defraud, did willfully and fraudulently make a false instrument in writing, purporting to be the act of another, to wit, the act of Wm. M. Cook, Jr., by then and there indorsing on the back of a genuine instrument in writing, to the tenor following:
" 'Treasury Warrant. $52.77.
" '[Seal.] No. 232. Comptroller's Office.
" 'AUSTIN, TEXAS, Sept. 18, 1894.
" 'The Treasurer of the State of Texas will pay to the order of Wm. M. Cook, pr. W.M. Cook, Jr., fifty-two 77-100 currency dollars, for direct tax paid in Calhoun County, and charge the same to special deposit direct tax fund.
" '__________, Treasurer.
" 'STEPH. H. DARDEN, Comptroller. " 'Chf. Clerk.'
— "the names 'Wm. Cook, pr. Wm. M. Cook, Jr., W.L. Thulemeyer,' which said indorsements made by the said W.L. Thulemeyer, as aforesaid, would, if the same had been true and genuine, have transferred said genuine instrument in writing."
Said indictment distinctly charges that the forgery consists in the false indorsement on the back of said instrument purporting to be the act of William M. Cook, Jr. In the tenor clause, in setting out the indorsement on the back of said instrument, the pleader sets out as follows: "Wm. Cook, pr. Wm. M. Cook, Jr., W.L. Thulemeyer." The contention here is that in the purport clause the pleader should have set out all the names constituting the indorsement, in order that there should be an accurate correspondence between the purport and tenor clauses of the indictment. In accordance with our decisions upon this question, the point seems to be well taken. See Roberts v. State, 2 Texas Crim. App., 4; English v. State, 30 Texas Crim. App., 470; Campbell v. State,
Appellant assigns a number of other errors. We have examined the record in respect to the same, but, in our opinion, the court did not err in the admission or rejection of testimony, nor in the charges given or refused; but, on account of the variance between the purport and tenor clauses of the indictment, the judgment is reversed, and the cause dismissed.
Reversed and dismissed.