23 Tex. Ct. App. 401 | Tex. App. | 1887
This is an appeal from a judgment of conviction upon an indictment, the charging part of which is that defendant “did, then and there, without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a false instrument in writing, purporting to be the act of another, to wit, the act of C. J. Chapman; which said false instrument is to the tenor following: ‘ Sept. 20, 1886. Mr. E. A. Bledsoe. Dear Sir: Please sell Mr. Westbrook twenty or twenty-five dollars worth of goods, and I will be down in 8 or 10 days his and settle for them. C. J. + Chatman;’ against the peace and mark. dignity of the State.”
This indictment was not attacked in the court below, nor has its validity been questioned by appellant’s counsel on appeal. We are of opinion, however, that the indictment is fatally defective in that there is an irreconcilable repugnancy between its purport and tenor allegations. By its purport clause it charges that the forged instrument purports to be the act of one Chapman; by its tenor clause it sets out Tioec verba an instrument executed by one Chatman. As set forth, the instrument certainly does not purport to be the instrument of one Chapman. It was unnecessary to set out the name of the party to be defrauded, because the statute expressly provides that, in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person to be defrauded. (Code Crim. Proc., art. 403.)
The question here presented was somewhat elaborately dis
In the case of The State v. Bean, Redfield, Judge, says: “It is undoubtedly true that the averments of the obligation which the note imported must not be inconsistent with those which seem to flow from it as set forth in the billj otherwise the judgment will be arrested. And, therefore, where the averments in the indictment improperly describe the import of the obligation of any contract forged, this defect is not cured by reciting the instrument in hcBG verba” (19 Vt., 530.)
In the State v. Pullens, 81 Missouri, 387, the rales with regard to pleading in forgery cases are succinctly stated as follows: “ An indictment setting out the instrument forged according to its tenor only would undoubtedly be sufficient. (2 East’s Pleas of the Crown, 983.) In the indictment before us the pleader has attempted to set out the note forged according to its purport as well as according to its tenor. Where the tenor is given the purport must necessarily appear, as the tenor of an instrument means an exact copy of it; whereas the purport means the substance of it as it appeared on the face of the instrument to every eye which read it. As said by Buller, Judge, in Reading’s case, 2 Leach, 572: ‘The indictment is repugnant within itself; for the name or description of one person or thing could not purport to be another;’ and in Gilchrist’s case, upon a conference of ten judges, it was held that the word ‘ purport ’ imports
Looking at the face of the instrument before us, it is apparent therefrom that it does not purport to be the act of C. J. Chapman; on the contrary, it appears to be, and purports to be, the act of C. J. Chatman; and Chapman and Chatman are not the same name.
Because the variance and repugnancy between the purport and tenor clauses are irreconcilable to the extent that they invalidate the indictment, the judgment is reversed and the prosecution is dismissed.
Reversed and dismissed.