Chowning v. State
| Decision Date | 21 December 1938 |
| Docket Number | No. 20055.,20055. |
| Citation | 127 S.W.2d 461 |
| Parties | CHOWNING v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Runnels County; O. L. Parish, Judge.
W. M. Chowning was convicted of knowingly passing a forged instrument, and he appeals.
Affirmed.
J. C. Darroch and E. M. Davis, both of Brownwood, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is knowingly passing a forged instrument. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant's only contention is that the court erred in declining to sustain his motion to quash the indictment, on the ground that it failed to charge an offense, etc.
The indictment contains two counts. The first charged forgery and the second, being the one upon which he was convicted, omitting the formal parts reads as follows:
He first takes the position that it is not charged in the indictment that the name signed to the alleged forged instrument was other than his, appellant's name. The name signed thereto was other than his. It is charged that W. M. Chowning, (which is appellant's name), did knowingly pass as true, a forged instrument which is set out in haec verba and which bears the name of Banner Creameries by C. O. Williams and which is drawn on the Farmer and Merchants National Bank of Abilene, Texas. This instrument is an ordinary draft such as is commonly used in commercial transactions and required no explanatory averments. See Dooley v. State, 21 Tex.App. 549, 2 S.W. 884; Miller v. State, 50 Tex.Cr.R. 536, 100 S.W. 380.
His next contention is that the instrument is not such as, on its face, created a pecuniary obligation so that without any explanatory averments, it was insufficient to charge the offense. His contention seems to us untenable. The instrument was an ordinary commercial draft which, if true, would create a pecuniary obligation on the Banner Creameries and would be sufficient as a basis for a civil action. Consequently it would be good as the basis of a forgery. In the case of Dooley v. State, supra, this court, speaking through Judge Willson, said [page 885]:
It is clear to our minds that money was the object of the instrument in question. It was, in legal effect, an order by Banner Creameries upon the Farmers and Merchants National Bank of Abilene in favor of C. B. Rutherford for $34. in money. Its object was to have the bank pay to C. B. Rutherford the amount of money therein specified and if the bank had paid the money, the Banner Creameries would have been liable to the bank had the draft been genuine. In support of the views herein expressed, we refer to the cases of Gumpert v. State, 88 Tex.Cr.R. 492, 228 S.W. 237; Davis v. State, 70 Tex.Cr.R. 253, 156 S.W. 1171; Morris v. State, 17 Tex.App. 660.
Appellant also contends that the instrument, on its face, fails to disclose that C. O. Williams, whose name appears signed thereto, had authority to act on behalf of the Banner Creameries. That therefore, explanatory averments were necessary in order to show that it created a pecuniary obligation.
The test is not whether in fact C. O. Williams had such authority; it is sufficient if, on its face it appears so, and the instrument imports a pecuniary obligation and appears to be genuine. If so, it is the basis for a charge of forgery. If, however, the instrument be genuine, it would not be a forgery and consequently would not support a charge of passing a forged instrument, since it would not have a tendency to defraud. See Spicer v. State, 52 Tex.Cr.R. 177, 105 S.W. 813; King v. State, 42 Tex.Cr.R. 108, 57 S.W. 840, 96 Am.St.Rep. 792.
The record clearly shows that the alleged instrument was a forgery and that he knew it. He had another check in his possession, similar to the one in question, which he was about to pass to another merchant when he was apprehended and turned over to the officers.
Having reached the conclusion that the indictment is sufficient to charge the offense of knowingly passing a forged instrument, the judgment of the trial court will be affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
On Motion for Rehearing.
Appellant in his motion for a rehearing insists that we erred in holding the indictment in this case sufficient to charge an offense against the law, because it does not appear from the alleged forged instrument that Williams had authority to act for and on behalf of the Banner Creameries in signing its name thereto, and that the indictment should have averred that Williams had the authority to thus bind the Banner Creameries.
Does the instrument purport to be the act of Banner Creameries without the word "by" preceding the name "C. O. Williams?" We think so. The word "by" would be implied, not as constituting an element of the offense, but in giving verity to the instrument and clothing it with the appearance of an obligation on the Banner Creameries to pay a certain sum out of its payroll account. If it had that appearance, if it conveyed that idea and was calculated to defraud, it was sufficient to predicate a charge of forgery thereon without any explanatory averments in the indictment. It need only purport to be the act of another; in this case the act of the Creameries Company.
In the case of Brown v. State, 60 Tex. Cr.R. 505, 132 S.W. 789, in an opinion by Judge Ramsey, a check in substantially the same form as this one was held to be a subject of forgery without the aid of any explanatory averments. We quote the check:
"Orange, Texas, Feb. 1910. ______ No
$10.00
"The First Orange Bank of Orange, Texas
"Pay to Hebert Brown or bearer ten
____/100 Dollars
"The Cameron Live Stock Co
"Andrew Lemaire."
Although this indictment was not attacked on the specific grounds as the one in the instant case, nevertheless the court held that such indictment properly charged a violation of the law. To the same effect is the holding in the case of Brod v. State, 42 Tex.Cr.R. 71, 57 S.W. 671. To the same effect is the holding in the case of Howard v. State, 37 Tex.Cr.R. 494, 36 S.W. 475, 66 Am.St.Rep. 812, the forged instrument in that case being as follows:
in which case an indictment merely setting forth the instrument alleged to be the subject of forgery, signed John Finnigan & Co., was held sufficient to charge this offense.
We do find an authority of another state that seems to us to be in point relative to the proposition that where the name of another had been signed by an agent it was a representation therein by the one who utters or passes the instrument that the relation of principal and agent existed at that time, and thus abrogated the necessity of alleging or proving the relationship of principal and agent. We refer to a Minnesota case, State v. Fay, in 80 Minn. 251, 83 N.W. 158, 159. The instrument therein alleged to be forged reads as follows:
The specific objection was raised to this indictment that is the point at issue in this instant cause, and the Supreme Court of Minnesota held relative thereto the following: ...
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Ames v. State
...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 v......
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Sales v. State, 66074
...that the signature by George Angelo purported to be no one else's signature than a George Angelo. See also, Chowning v. State, 137 Tex.Cr.R. 4, 127 S.W.2d 461 (1939). The problem with the above analysis appears to be prior Texas caselaw that holds that a false claim of agency will not const......