Cochran v. State

• Decision Date: 30 May 1930
• Docket Number: No. 11602.,11602.
• Citation: 30 S.W.2d 316
• Parties: COCHRAN v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W.2d 316

COCHRAN v. STATE.

No. 11602.

Court of Criminal Appeals of Texas.

May 30, 1930.

State's Rehearing Granted January 15, 1930.

Appellant's Rehearing Granted June 27, 1930.

Appeal from District Court, Hall County; C. C. Small, Judge.

J. W. Cochran was convicted of forgery, and he appeals.

Reversed and remanded.

E. E. Diggs, of Childress, and Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is forgery; the punishment confinement in the penitentiary for three years.

The count of the indictment under which appellant was convicted charges that appellant "did then and there unlawfully and without lawful authority, and with intent to injure and defraud, make a false instrument in writing, which said false instrument in writing so made was then and there of the tenor following:

                      "`M. C. Boyd, County Treasurer
                           "`Childress, Texas, 6—18 1924
                  "`Pay to J. H. Dilliard or order $44.00
                Forty four & no/100 Dollars
                "`Farmers & Mechanics State Bank
                "`88—254—11 Childress, Texas
                    "Per M. C. Boyd, County Treasurer
                                "`By Frank W. Freeman
                "`8421.'
                

"And endorsed on the back thereof: `J. H. Dillard.'"

The state's testimony discloses that the check was written and signed by Frank W. Freeman, deputy county treasurer, after a warrant drawn by the county clerk had been presented to him by appellant. The state's testimony further shows that appellant indorsed J. H. Dilliard's name on the check without authority.

Appellant contends that there is a variance between the proof and allegations in the indictment. His contention must be sustained. Appellant was charged with making a false instrument in writing and such instrument was described as hereinbefore set forth. It was undisputed that appellant did not make the check, the state's evidence showing that the deputy county treasurer made it. The forgery consisted in the indorsement of the payee's name on the check without authority. If appellant forged the check the proof should have shown that his act purported to be that of the deputy treasurer. Article 979, P. C. Howes v. State, 109 Tex. Cr. R. 136, 3 S.W.(2d) 445. In the case of Pierce v. State, 38 Tex. Cr. R. 604, 44 S. W. 292, 293, the indictment charged the forging of a postal money order, whereas, the proof disclosed that the accused forged the name of the payee to such order. In reversing the case, Judge Henderson said: "If appellant, indeed, forged the money order, then, as contended by appellant, the proof should have shown that he personated the postmaster. In this case it shows no such thing. On the contrary, it shows that he forged the name of the payee of such order; that he forged his name to a receipt on the same, and obtained the money due on it. In our opinion * * * there is a complete variance between it [indictment] and the proof."

In McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394, Judge Morrow used language as follows: "If it is desired to prosecute for forging the name of the indorser, the indictment should be so framed as to coincide with the evidence to that effect."

In the instant case, the count of the indictment under which appellant was convicted was not so framed as to coincide with the evidence to the effect that the name of the payee of the check was forged. The indorsement, although set out in the indictment, was no part of the check. Cofer v. State, 107 Tex. Cr. R. 125, 295 S. W. 189, and authorities cited.

The judgment is reversed and the cause remanded.

PER CURIAM.

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.

LATTIMORE, J.

Both parties file motions for rehearing herein. Being of opinion that of the state's should be granted, there is no need to consider the application filed by the appellant.

This case was reversed in our original opinion for a supposed variance between the allegations of the first count in the indictment and the testimony, but upon mature consideration we are of opinion that our action in so doing was erroneous. There seems to have been no question raised in the trial court of the sufficiency of the first count in the indictment to charge forgery of the indorsement upon the check therein set out, either by motion to quash, objection to the introduction of testimony, or exception to the charge of the court submitting to the jury appellant's guilt under said count based upon their belief that he falsely made such indorsement.

It is evident from the record that the state's contention upon this trial was that appellant wrote upon the check set out in said first count, without lawful authority and with intent to injure and defraud, the name of J. H. Dillard as an indorsement on said check. The whole contention of appellant upon the trial, as evidenced by the testimony for the defense and the special charges requested, was that he was authorized or sufficiently believed himself authorized to write Dillard's name on said check as such indorsement. Upon this issue the battle was fought out in the lower court, the case tried, and a verdict rendered finding appellant guilty as charged in the first count of the indictment.

We are of opinion that said count one charges appellant with the forgery of said indorsement, and that said count was not defective in substance. Exception to the substance of an indictment must have been for one or more of the four reasons which are set out in article 511, C. C. P., none of which was advanced against the indictment or any part thereof in this case. Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928; Rangel v. State, 22 Tex. App. 642, 3 S. W. 788. Complaint of the mere form of an indictment cannot be for the first time made in a motion in arrest of judgment. Leon v. State, 95 Tex. Cr. R. 124, 252 S. W. 551; Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367.

Much of the able and ingenious argument in the brief of appellant's counsel is addressed to the sufficience of the indictment and the question of variance.

We are further of opinion that the testimony which showed that appellant received from the county treasurer a check payable to J. H. Dillard, and thereafter himself wrote the name "J. H. Dillard" as an indorsement on said check, was responsive to, and fully met, the allegations of forgery appearing in the first count of said indictment. Appellant as a witness admitted the receipt of said check from said treasurer, but claimed that J. H. Dillard owed him and that he believed he had the authority to write Dillard's name on said check. When cashed, said check bore the indorsement of Dillard which was shown to be in appellant's handwriting. Appellant was a county commissioner, and, on the witness stand, admitted that he put into the commissioners' court a claim for pay to Dillard for road work, which was allowed by the commissioners' court and a warrant for the amount was made out and delivered to appellant, who took it to the county treasurer and exchanged the warrant for the check mentioned, which check was payable to Dillard and was thereafter cashed by appellant, having upon it at the time the name of Dillard indorsed in appellant's handwriting. Dillard swore that the county owed him nothing for road work, that he put in no claim therefor, and did not authorize appellant to write his name on said check. The evidence as above stated in our opinion, is responsive to and meets the allegation, and is sufficient.

Appellant offered a number of witnesses to prove his good reputation as a peaceable law-abiding citizen. The state thereupon admitted in open court that appellant's general reputation, in the respects mentioned, was good until the happening of the events here involved. Thereupon the court declined to permit said witnesses to testify, and appellant excepted. There was no error in the court's action in reference to refusing to permit said witnesses to testify, in view of said admission. Becker v. State, 80 Tex. Cr. R. 186, 190 S. W. 185, and authorities cited. Other cases have since been rendered affirming the holding in the Becker Case.

We have examined the contentions set up in bills of exception 2, 3, and 4, and think none of them show error. A habit of appellant to cash checks for men in his employ; his wife's occasional payment for appellant of men who worked on the road by giving checks on appellant's bank account; his arrangement with other men to pay parties who worked for him as commissioner, and that thereafter he got warrants and checks and paid the parties with whom such arrangements had been made, would none of them shed light on the guilt or innocence of the accused in this case, it being shown by the testimony that appellant put in a claim for a man who swore that he had done no such work and had no right to such claim, and that if appellant thereafter indorsed upon the check, representing final settlement of such claim, the name of such man, such testimony, if true, could not shed light on appellant's claim that he had the right and authority from such man to make such indorsement. The exceptions to the charge of the court complained of in bill of exceptions No. 5 are deemed of no merit.

Believing that the case was fairly tried, and that the first count in the indictment sufficiently charged the offense of forgery of the indorsement on the check, and that it was met by the proof made, we are of the further opinion that the state's motion for rehearing should be granted, the judgment of reversal heretofore rendered set aside, and the judgment of the trial court affirmed, all of which is now accordingly ordered.

On Appellant's Motion for Rehearing.

HAWKINS, J.

On account of an unusual combination of circumstances a rather peculiar situation has arisen in this case.

The original opinion reversing the judgment and remanding the case...