Carrell v. State

• Decision Date: 06 November 1918
• Docket Number: (No. 5145.)
• Citation: 209 S.W. 158
• Parties: CARRELL v. STATE.
• Court: Texas Court of Criminal Appeals

209 S.W. 158

CARRELL v. STATE.

(No. 5145.)

Court of Criminal Appeals of Texas.

November 6, 1918.

On Rehearing, February 12, 1919.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

W. J. Carrell was convicted of forgery and he appeals. Affirmed.

See, also, 204 S. W. 334.

F. E. Johnson and S. C. Padelford, both of Cleburne, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

BRADY, Special Judge.

Appellant was charged by indictment with the offense of forgery, was convicted, and his punishment assessed at confinement in the penitentiary for three years. The indictment contained two counts, charging forgery by alteration of the instrument hereinafter set out, the second count charging the passing of the alleged forged instrument.

In substance, the indictment charged that appellant, as county superintendent of public instruction for Johnson county, Tex., without lawful authority, and with intent to injure and defraud, did willfully and fraudulently alter a written instrument already in existence, and which he had theretofore made, and which before its alleged alteration was as follows:

                        "Cleburne, Texas, May 30, 1913
                

"The National Bank of Cleburne County Depository.

"Please pay to T. C. Perry, or bearer,

                                                        $900.00
                

Nine Hundred and no/100..............dollars out of the State & Co. collected for school District No. ____, Johnson Co. for Trs. expenses.

                        "V. J. Carrell, County
                        "Superintendent Public Schools."
                

The indictment then charges that appellant altered the said instrument by writing and indorsing the name of T. C. Perry across the back of said instrument, so as to make the same appear as the indorsement of said T. C. Perry, and in such a manner as that said false indorsement so made would have created, if the same had been true and legally made, a pecuniary obligation of T. C. Perry.

By innuendo and explanatory statements, it was alleged in the indictment that the bank upon which said check was drawn was a national bank, and was the legal depository of the public school funds of Johnson county. Other explanatory matters were alleged, not necessary to here set out, including the averment that part of the language and abbreviations in the instrument meant that T. C. Perry was entitled to $900 out of the school fund of Johnson county for the year 1913, and that said sum was to be paid to T. C. Perry, payee in said check, out of the fund for transfers, such transfer fund arising from the transfer of school children from the common schools to an independent school district of said county, or to some other district outside of that county. It was further alleged in the indictment that appellant intended by said instrument, and the language and figures therein used, that same should be understood and accepted as a check on, and as authority to, said depository to pay out of said school funds the said transfer fund of $900. It was also averred in the indictment that appellant intended to sign said instrument in his official capacity of county superintendent of public instruction by the use of the language "County Superintendent of Public Schools."

The second count of the indictment is the same as the first, except that appellant was charged with fraudulently passing as true the alleged forged instrument to the National Bank of Cleburne.

This case was before this court on a former appeal, being cause No. 4975, and the case was affirmed in an opinion delivered by Presiding Judge Davidson. It having been thereafter discovered, however, that appellant had not been sentenced, and that therefore this court had no jurisdiction to entertain his said appeal, the same was dismissed (204 S. W. 334). The case is now here upon a second appeal upon the same record, and with substantially the same grounds of error assigned.

Appellant's counsel have attacked the indictment from almost every conceivable standpoint, and have presented their objections in multifarious ways. The same questions in effect were presented by the objections to the validity of the indictment in another case, wherein appellant appealed to this court, viz. Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217. The indictment in that case was in all substantial respects similar to the indictment in the instant case, and the validity of such indictment was upheld by this court, except as to the failure of the state to properly innuendo and explain the phrase "County Superintendent of Public Schools." This vice in the indictment has been cured in the present case, and therefore we think the questions presented are to be controlled by the decision in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217; and we might well rest the decision, as to the validity of the indictment, upon the opinion there rendered by Presiding Judge Prendergast. However, counsel for appellant have presented anew these questions in elaborate written and oral argument with such earnestness and vigor that we have been impelled to again refer to the authorities and the objections urged against the indictment.

We think that the various contentions and argument of counsel urged against the validity of the indictment may be reduced to these propositions: (1) That the instrument set out in the indictment was illegal and void, and could not be made the subject of forgery, because the transfer fund against which said check purported to be drawn was a trust fund, and that the county superintendent was without lawful authority to draw the check against said fund, and the bank had no authority to pay the same; (2) that the said instrument was illegal and void for the further reason that the payee named therein was an individual, who could not lawfully be made payee of such an instrument, and who was without legal authority to cash said check or receive said fund; (3) that the instrument was nonnegotiable, and that the indorsement by appellant of the payee's name on the back of said check was wholly without legal effect, and did not and could not create any pecuniary obligation, or affect or transfer property in any manner whatsoever; (4) that for these reasons the instrument was a nullity, including the indorsement, and could not be made the subject of forgery by alteration, or of passing a forged instrument.

In the Carrell Case, 79 Tex. Cr. R. supra, Presiding Judge Prendergast set out the substance of the applicable provisions of our Penal Code on the subject of forgery, with the exception of the statute on passing forged instruments; and also tersely stated the substance of the pertinent provisions of the Revised Statutes relating to the powers and duties of the county superintendent, especially in reference to the transfer funds in the school fund. We deem it unnecessary to again set out these provisions of law. Neither do we feel called upon to again state the reasons which led to the conclusion there clearly decided, that the county superintendent was authorized, if not required, by law to effect the transfer of the fund described in the indictment. To this conclusion we adhere. It follows that the bank, the depository of the school fund, was authorized and required to cash and pay a proper check or order drawn by the county superintendent for the withdrawal of the said transfer fund to the district entitled to same, or to the proper officer or custodian of such fund; but appellant further raises the point that the payee in the instrument, T. C. Perry, was not a legal payee, because he had no title or right to said fund, nor authority to cash said check or receive the money. It may well be doubted whether the county superintendent had any lawful authority to draw said check in favor of the said payee, unless he were the treasurer of the independent district, or the proper custodian of the trust fund after its withdrawal and transfer from the county depository, the payor bank. Conceding this proposition to be correct, however, we do not think it follows that the instrument would be null and void or incapable of being made the subject of forgery under our statutes.

It is a proposition abundantly supported by the authorities in this and other states, as well as by text-writers of eminence, that it is not necessary that a written instrument, made the basis of a forgery indictment should import an actual legal efficacy. The writing is not required to be such as that, if genuine, it would be a binding obligation. It is sufficient that it is calculated to deceive and is intended to be used to defraud. If the instrument purports to be good, although it might be shown by extraneous facts to be invalid, it will suffice as a predicate for forgery if calculated to deceive or intended for purposes of fraud. A valuable collation of the authorities on this point is to be found in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501, in the opinion of Judge Prendergast; also see the dissenting opinion of Judge Davidson in Caffey v. State, 36 Tex. Cr. R. 198, 36 S. W. 82, 61 Am. St. Rep. 841. This rule was applied in the Dreeben Case by this court, and we refer to the authorities and discussion in the opinion in that case as expressing our views and as applicable to the instant case.

In the present instrument the payee was simply described as T. C. Perry. For aught that appears on the face of the instrument, he might have been the treasurer of the independent district, entitled to the transfer fund described therein, or the proper person to withdraw and hold the custody of said fund. We think it is clear that the instrument set out in the indictment in this case imported at least an apparent legal efficacy and purported to be genuine. It was calculated to deceive, was intended to be and was used to defraud, and purported to affect property, viz. the transfer fund belonging to a school district. Therefore we adhere to the holding in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217,...