Baker v. State
| Decision Date | 14 June 1977 |
| Docket Number | No. 53183,53183 |
| Citation | 552 S.W.2d 818 |
| Parties | James Edward BAKER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This appeal arises out of a conviction for forgery by passing. See V.T.C.A., Penal Code, § 32.21(a)(1)(B). Punishment was assessed at life imprisonment after the jury had found the appellant guilty and that he had twice previously been convicted of felonies as alleged in the indictment.
In two grounds of error appellant contends the court erred in overruling his motion for instructed verdict because the State failed to show that: (1) he intended to defraud or harm anyone, or (2) he knew or had knowledge the instrument allegedly passed was forged.
The record reflects that on February 1, 1974 appellant entered a Serv-U-Food store in Lubbock and asked the checker, Marie Sargent, who was in charge of the store at the time, to cash a check for him, telling her it was "for his uncle." Following normal procedures, Sargent asked for appellant's driver's license. He said he had none but displayed a photostatic copy of a social security card bearing number 460-52-4522 that supposedly belonged to his uncle. The check, in the amount of $98.70, was drawn on the account of Mr. and Mrs. Billy L. Smith. It was signed "Mr. Billy L. Smith" and was payable to "James W. Jones." Marie Sargent cashed the check, but as appellant was leaving she asked Ben Pastrano, a butcher at the store, to get the license number of the automobile appellant was driving. Pastrano found appellant standing by a car near the gasoline pumps of the store. As he wrote the license plate numbers of the car on a piece of paper, appellant asked him what he was doing. Pastrano answered he was reading the gasoline pump meter. Appellant asked for the paper and attempted to take it away from Pastrano. The attempt failed and Pastrano returned to the store, where he gave the license number to Marie Sargent.
Billy L. Smith, a used car dealer, testified he maintained a joint checking account with his wife but that the writing on the check in question was not his nor had he authorized anyone to make out the check. He did not know a James A. Jones. He stated he had sold a car to the appellant at the end of December, 1973 or the first of January 1974. After February 1, 1974, when he received his statement from the bank, he discovered several unauthorized checks had been paid. On investigation, he discovered that nine checks were missing from back of his checkbook, which the record reflects was kept at his used car lot. Smith's wife testified she did not sign the check nor give anyone permission to fill out the check. She did not know a James W. Jones.
The appellant did not testify nor offer any testimony.
In answer to appellant's contention the evidence was insufficient to show an intent to defraud or harm, the State argues such is not an element of forgery under V.T.C.A., Penal Code, § 32.21, citing Aldridge v. State, 492 S.W.2d 477 (Tex.Cr.App.1973). Reliance upon Aldridge is misplaced for it dealt with a conviction for passing as true a forged instrument under Article 996 of the former Penal Code.
Under the former Penal Code, Article 979 defined the offense of forgery and required as an element an intent to injure or defraud. See Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955); Rice v. State, 484 S.W.2d 589 (Tex.Cr.App.1972). The offense of passing as true a forged instrument under Article 996 of the former Code lacked this element, requiring a showing of only three elements, to-wit:
(1) a person must pass as true
(2) a forged instrument in writing
(3) knowing that it was forged at the time of the passing.
See Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Aldridge v. State, supra ; Montogomery v. State, 157 Tex.Cr.R. 44, 246 S.W.2d 209 (1952).
With the adoption of the new Penal Code, effective January 1, 1974, Articles 979 and 996, as well as others, were combined into V.T.C.A., Penal Code, § 32.21, defining forgery, which provides in part:
Under this current statute, the definition of forgery includes the act of passing as true a forged instrument and requires as an element of the offense an intent to defraud or harm. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977). The Practice Commentary to said § 32.21 notes:
Thus, it is clear that intent to defraud or harm is a necessary element of forgery under said § 32.21, and the burden is on the State to prove every element of the offense charged, Reed v. State, 533 S.W.2d 35 (Tex.Cr.App.1976), although scienter may be established by circumstantial evidence. Stuebgen v. State, supra ; Watson v. State, 418 S.W.2d 822 (Tex.Cr.App.1967); 25 Tex.Jur.2d,...
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