Carter v. State, 19131.

• Decision Date: 17 November 1937
• Docket Number: No. 19131.,19131.
• Citation: 116 S.W.2d 371
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W.2d 371

CARTER v. STATE.

No. 19131.

Court of Criminal Appeals of Texas.

November 17, 1937.

Rehearing Denied April 27, 1938.

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Commissioner's Decision.

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

M. D. Carter was convicted of conspiring to commit forgery, and he appeals.

Affirmed.

Joe Strode, of Conroe, Gordon Burns, of Huntsville, C. C. McDonald, of Wichita Falls, and Mayfield, Grisham & Grisham, of Tyler, for appellant.

Dan Moody, of Austin, and Russell Allen and W. B. Harrell, both of Dallas, amici curiæ.

Fulbright, Crooker & Freeman and C. A. Leddy, all of Houston, Texas, amicus curiæ.

W. C. McClain, Dist. Atty., and Nelson Jones, both of Conroe, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of conspiring to commit forgery, and his punishment was assessed at confinement in the State Penitentiary for a term of two years.

Appellant's first contention is that the court erred in declining to sustain his motion to quash the indictment upon the various grounds therein stated. The indictment contained four counts, but the court submitted the cause to the jury upon the first and fourth counts only. Appellant was found guilty under the fourth count. Consequently, all objections to the first three counts pass out of the case and we need consider only the sufficiency of the fourth count.

It is charged in said count that on or about the 18th day of October, a. d. 1935, Otis Gibson, H. E. Hines, D. D. Feldman, Frank Bennett, Oren C. Roberts, M. D. Carter, A. N. Adelson, and L. R. Hepworth did unlawfully conspire, combine, confederate, and enter into a positive agreement, together and between themselves, to commit a felony, in this, to wit:

The said defendants did then and there conspire, combine, confederate, and enter into a positive agreement together and between themselves to, without lawful authority and with intent to defraud, knowingly use a forged tender of the Railroad Commission of Texas, relating to crude petroleum oil to induce another, to wit, Channel Transport & Marketing Company, an incorporated company, to transport and handle crude petroleum oil; which tender, if genuine, would be a written permit for the transportation of such oil, issued under the authority of the said Railroad Commission of Texas; which said forged tender was a purported tender to which had been forged without lawful authority and with intent to defraud, the name of an agent of the Railroad Commission of Texas, to wit, the name of E. L. Green, Jr., who was then and there an agent of the said Railroad Commission; and the said forged instrument in writing, on or about said date, had been made without lawful authority with intent to injure and defraud, and purported to be the act of said E. L. Green, Jr., agent, as aforesaid; and such permit is commonly known as a tender as said defendant then and there well knew, and said conspiracy was then and there agreed to be executed in Montgomery county, State of Texas, where said oil was then and there situated, and where said oil was agreed to be handled by and under the authority of said forged tender, etc.

Appellant's contention is that the conservation statute relating to oil, etc., is in contravention of the Federal and State Constitutions, and that it also contravenes the anti-trust laws. We do not deem it necessary to enter a discussion thereof because said law has been upheld not only by the courts of this state, but also by the federal courts. See Brown et al. v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 97 A.L.R. 1107, 101 A.L.R. 1393; State v. Blue Diamond Oil Corporation, Tex.Civ.App., 76 S.W.2d 852; Atlas Pipe Line Company v. Sterling, D.C., 4 F.Supp., 441.

Appellant further contends that the court erred in declining to sustain his motion to quash the said fourth count, on the ground that it was not averred therein that the Railroad Commission had theretofore, under and by virtue of the statute, made any rule or order requiring a tender or permit to ship or transport any oil, and that such rule or order had been promulgated by publishing a complete copy of same in three newspapers of general circulation in the State of Texas, once each day for three consecutive days, as provided by section 5 of an act of the Legislature approved on the 11th day of May, 1935, Vernon's Ann.Civ. St. art. 6066a, § 5. This section provides, among other things, that no criminal action shall be maintained against any person involving the violation of any provisions of any rule, regulation, or order pursuant to any statute of this State, until the commission shall have promulgated such rule, regulation, or order by publishing a complete copy of same, etc.

Subsection (d) of section 4 of said article provides: "Every person who shall knowingly ship or transport or cause or permit to be shipped or transported * * * oil * * * without authority of a tender * * * shall be punished by a fine of not less than Fifty Dollars ($50) nor more than Two Hundred Dollars ($200)."

If this prosecution were based upon an act of the defendant in shipping and transporting oil without a permit, there might be merit in his contention, but this prosecution is based upon a violation of article 1111c, Vernon's Ann.Pen.Code, which reads as follows: "Whoever shall forge the name of any agent, officer or employee of the Railroad Commission of Texas to a permit or tender of the Railroad Commission of Texas relating to crude petroleum oil or natural gas, or any product or by-product of either, or who shall forge the name of any person to such tender or permit, or who shall knowingly use such forged instrument to induce another to handle or transport any crude petroleum oil or natural gas or any product or by-product of either, shall be confined in the penitentiary not less than two (2) nor more than five (5) years."

It is apparent that section 5 of said article has reference to the preceding section and subsection of said article, because subsection (d) of section 4 makes it a misdemeanor for any person who shall knowingly ship or transport or cause or permit to be shipped or transported by any pipe line, railroad, barge, or boat, any oil without authority of a tender—shall be punished by a fine.

The offense with which appellant is charged in the instant case is not for shipping or transporting oil without a permit, but for conspiring to forge and use a forged instrument, an entirely different act than that denounced by article 6066a, § 4, supra, constituting an entirely different offense, and for which a different penalty is prescribed. Consequently, section 5, above referred to, has no application to the instant case. Roco Ref. Co. v. State, Tex.Civ.App., 94 S.W.2d 1214.

Appellant further contends that the alleged instrument declared upon cannot form the basis of forgery, unless the necessary prerequisites which would make it a valid instrument had been complied with in reference to the adoption of an order, and the publication thereof. In the case of Jones v. State, 60 Tex.Cr.R. 67, 130 S.W. 1012, 1013, this court, speaking through Judge Davidson, said: "An instrument valid on its face is equally the subject of forgery, although collateral or extrinsic facts may exist which would render it absolutely void, if genuine."

This legal principle was first announced by this court in Costley v. State, 14 Tex. App. 156, and subsequently followed in the case of Tracy v. State, 49 Tex.Cr.R. 37, 90 S.W. 308, and Richards v. State, 116 Tex.Cr.R. 100, 29 S.W.2d 367. Bishop on Criminal Law, vol. 2, § 533, lays down the following rule: "The false writing must be such as, if true, would be of some like or apparent efficacy, since otherwise it has no tendency to defraud; in other words, it must either be in fact, or must appear to be, of legal validity, but it need not have both the appearance and the reality." He cites many authorities in support of the text. The same author further states: "Since men are not legally presumed to know the facts, a false instrument, good on its face, may work a fraud, though extrinsic facts show it to be invalid even if it were genuine; therefore, there may be a forgery of such an invalid instrument." Again, he says that "It is no defense to a charge of forging a bank bill that the bank never issued bills of the denomination forged."

Consequently, the want of validity must appear on the face of the written instrument to relieve it from the character of forgery. In the instant case, the tender or permit purports on its face to be the act of an agent of the Railroad Commission, and, if false, constitutes forgery, though extrinsic facts may show it to be invalid.

Appellant makes an attack upon the validity of article 1111c, Vernon's Annotated Texas Penal Code, on the ground that it is too uncertain and indefinite, without properly defining the words "permit," "forgery," and "forged instrument," and cites us to article 6, P. Code, which reads as follows: "Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative."

We do not concur in the position taken by the appellant that the law relative to forgery of a tender or permit is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the state.

The word "tender" is defined by article 6066a, section 1 (g), Vernon's Ann. Civil Statutes, as follows: "The word `tender' shall mean a permit or certificate of clearance for the transportation of oil or products approved and issued or registered under the authority of the...