Ames v. State

• Decision Date: 17 July 1973
• Docket Number: No. 46388,46388
• Citation: 499 S.W.2d 110
• Parties: Wayne B. AMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 110

499 S.W.2d 110

Wayne B. AMES, Appellant, v. The STATE of Texas, Appellee.

No. 46388.

Court of Criminal Appeals of Texas.

July 17, 1973.

Rehearing Denied Oct. 24, 1973.

Lee A. Chagra, El Paso, for appellant.

Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted by jury verdict of the offense of forgery of an endorsement. Punishment was assessed at seven years probated.

The first three grounds contend error of the trial court in failing to sustain appellant's motions to dismiss the indictment because of a fatal variance between the purport and tenor clauses of the indictment.

The indictment, omitting the formal parts, charges that on or about September 8, 1970, appellant 'did then and there unlawfully and without lawful authority and with intent to injure and defraud, make a false instrument in writing, purporting to be the act of another, to-wit, the act of endorsement, by then and there writing on the back of a draft then and there of the tenor following:

the name of Chester Pope, Jr. so as to thereby make said false endorsement appear as an endorsement of said draft and in such manner that the said false endorsement so made would, if the same were true, have created a pecuniary obligation and have transferred said draft.'

In the instant case the purport clause reads: '. . . purporting to be the act of another, to-wit, the act of endorsement, . . .,' and the tenor clause includes only the front of an instrument set forth by its tenor appearing to be a genuine instrument in writing made by Harlon E. Perrin and naming Chester Pope, Jr. as payee therein. In addition there is the explanatory averment in the indictment that appellant committed forgery by then and there writing on the back of a draft then and there of the tenor following: '. . . the name of Chester Pope, Jr.'

The face of the draft alleged to be the subject of the forged endorsement is set out in haec verba in said indictment, and shows that both the maker and the payee are different persons from the appellant. Under such circumstance, it is not necessary that the indictment aver that the forgery puports to be the act of another. Wisdom v. State, 122 Tex.Cr.R. 271, 54 S.W.2d 533. However, in the instant case, the indictment does contain a purport clause. It does not pertain to any person but rather pertains to the act of endorsement. The terminology 'act of endorsement' therein is descriptive, not of the word 'another' but of the word 'act.'

Any variance between the purport clause and the tenor clause as to whose act the instrument purports to be is fatal. 3 Branch's Ann.P.C.2d, Sec. 1580, and cases cited therein. This is true even though it was unnecessary to include a purport clause. Millsaps v. State, 38 Tex.Cr.R. 570, 43 S.W. 1015. The issue presented is, then, whether a purport clause that merely describes the act of endorsement rather than an act of a named person causes such a variance that would vitiate the indictment. The indictment can not reasonably be construed as charging that appellant forged the face of the instrument, or the maker's name; it expressly alleges the forgery as consisting of the endorsement by appellant of the payee's name on the back of the draft.

As previously stated, it is apparent from the face of the instrument or draft that Chester Pope, Jr. was the payee. Also, the appellant's name does not appear on the face of such instrument or draft. The clause appellant complains of is not a purport clause as to 'who' committed the act, but is rather a purport clause as to what act was committed; namely, the act of forgery of an endorsement as opposed to forgery of an instrument. As such, no material variance exists between the purport clause and the tenor clause. The face of the indictment satisfactorily apprises appellant of the charges against him.

Appellant's first, second and third grounds of error are overruled.

Appellant summarizes his grounds of error four through seven as follows:

'The trial court erred in failing to grant appellant's motions to quash and to dismiss the indictment because the indictment is vague, general and indefinite and fails to allege the constituent elements of the offense charged as required by Articles 21.03, 21.04 and 21.11, V.A.C.C.P.'

The indictment in the case at bar was taken verbatim from Volume 3, Branch's Ann.P.C. of Texas, 2nd Edition, Sec. 16.09.2. Ordinarily an indictment drawn in the language of the statute is sufficient. Neill v. State, Tex.Cr.App., 225 S.W.2d 829. The indictment alleges forgery of the endorsement, Marks v. State, 318 S.W.2d 896, and as heretofore stated it is apparent from the face of the indictment that the allegation refers to the endorsement and not the instrument itself. Richards v. State, 116 Tex.Cr.R. 100, 29 S.W.2d 367.

Although the instant indictment identifies 'the act of another to-wit, the act of endorsement,' the indictment continues as follows: '. . . by then and there writing on the back of the draft . . . the name of Chester Pope, Jr.' It is apparent from the face of the indictment that the 'act of endorsement' refers to the back of the instrument and, although the back of the instrument was not set out by its tenor, the averment explained the transaction alleged to constitute a forgery. The indictment alleges that appellant made a false instrument in writing purporting to be the act of another and expressly modifies this statement by specifically referring to the forged endorsement of Chester Pope, Jr., who is shown on the face of the draft to be the payee of an insurance company claim settlement draft. It was necessary that the written draft be set out in haec verba in the indictment. Harris v. State, 150 Tex.Cr.R. 137, 199 S.W.2d 522; Terry v. State, Tex.Cr.App., 471 S.W.2d 848. ¹ This was done. The allegation of the false endorsement of the payee's name on the back of the instrument was sufficient without further copying the name of the payee in quotes. Appellant was sufficiently apprised of the alleged offense, and the variance, if any, is harmless.

Appellant also argues that the instrument did not, on its face, create a pecuniary obligation, so that without any explanatory averments in the indictment tending to show that the draft was not a contingent liability, or that if it was a contingent liability, the contingency had occurred, the indictment was insufficient to charge the offense. This contention is untenable. The instrument was an insurance company claim settlement draft, which, if true, would create a pecuniary obligation on the Continental Insurance Companies and would be sufficient as a basis for a civil action. With the payee's true endorsement, it would pass in commercial actions as a check. Consequently, it would be good as the basis of a forgery. Johnson v. State, 172 Tex.Cr.R. 224, 355 S.W.2d 529; 3 Branch's Ann.P.C.2d, Section 1587, p. 726.

It is clear that money was the legal object of the instrument in question. The insurance agent, Mr. Perrin, testified that 'affixing the signature to the reverse side of the check would transfer the funds to the person handling the draft, and the draft would make its way back to the home of Continental Insurance Company.' See Chowning v. State, Tex.Cr.App., 127 S.W.2d 461.

The draft was in effect a check and the mere fact that the draft stated 'upon acceptance pay to 'Chester R. Pope" did not vitiate the fact that the instrument created a pecuniary obligation sufficient to maintain a civil suit. The true endorsement by Pope would have constituted an acceptance. See Dreeben v. State, 71 Tex.Cr.R. 341, 162 S.W. 501; Carrell v. State, 79 Tex.Cr.R. 198, 184 S.W. 217.

Further, the indictment is sufficient on its face because there are facts alleged necessary (1) to show that the offense was committed, (2) to bar subsequent prosecution for the same offense, and (3) to give notice of precisely what appellant is charged with. See Sassano v. State, 163 Tex.Cr.R. 345, 291 S.W.2d 323; Terry v. State, Tex.Cr.R., 471 S.W.2d 848. The indictment is sufficient to comply with aforementioned requirements. See Articles 21.03, 21.04, 21.11, Vernon's Ann.C.C.P.

Appellant's fourth, fifth, sixth and seventh grounds of error are overruled.

Appellant, in his summary of grounds of error seventeen, eighteen, and nineteen, contends that 'the trial court erred in failing to grant appellant's motion for instructed verdict of acquittal because there was no evidence of probative force, the evidence was insufficient and the indictment did not support the evidence addressed so as to sustain the court in submitting a charge to the jury.'

The record reflects the following evidence from State's witnesses:

Chester Pope, Jr., the named payee in the draft in question, testified that in 1968 he had employed appellant as his attorney to handle a matter involving an automobile collision. Appellant's services were quite satisfactory to Pope in this transaction. In September 1969, Pope had a car accident with a Mrs. Pruitt in which his car suffered some damage amounting to about $75.00. He discussed this with appellant, who told him that he would represent him in this matter without charging a fee since it only required writing a letter to the insurance company. Pope talked to appellant several times thereafter saying he needed the money in order to get his car fixed. He later, in September 1970, talked to Mr. Pruitt, who told him the claim had been settled. He next called Pruitt's insurance company, who also stated the matter had been settled. ² A detective came to talk to Pope about this. Pope called appellant's office and learned that his telephone had been disconnected, and that he had left town.

On direct examination, Pope was handed the draft described in the indictment, admitted in evidence as State's Exhibit No. 1, the reverse side of which carried the...