Hendricks v. State

• Decision Date: 17 October 1888
• Citation: 9 S.W. 555
• Parties: HENDRICKS <I>v.</I> STATE.
• Court: Texas Court of Appeals

9 S.W. 555

HENDRICKSv.

STATE.

Court of Appeals of Texas.

October 17, 1888.

Appeal from district court, Williamson county; J. C. TOWNES, Judge.

The defendant, Jacob Hendricks, was indicted and convicted for forgery. From the judgment he appeals.

J. W. Parker, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

As set forth in the indictment, the instrument alleged to have been forged is in these words, viz.:

                  "Prescriptions a Specialty
                                                         "TAYLOR, TEXAS, _____, 188___
                  "M ____
                                       "Bought of Dr. F. T. Cook
                        "Drugs, Medicines, Toilet Articles, Books, Jewelry, etc
                                     "All bills due first each month."
                

"Mr. Goldstone Please let Bare Have the sume of $5 Dollars in Grosses and charge the same to DR F T COOK."

An order for merchandise may be the subject of forgery. Peete v. State, 2 Lea, 513; U. S. v. Book, 2 Cranch, C. C. 294; U. S. v. Brown, 3 Cranch, C. C. 268; State v. Morgan, 35 La. Ann. 293; State v. Ferguson, Id. 1042; Horton v. State, 53 Ala. 488; Anderson v. State, 65 Ala. 553; Burke v. State, 66 Ga. 157; State v. Keeter, 80 N. C. 472; People v. Shaw, 5 Johns. 236; Com. v. Fisher, 17 Mass. 46; Roberts v. State, 2 Tex. App. 4; Keeler v. State, 15 Tex. App. 111. "It is not merely a request for the delivery of property, but is a writing obligatory promising to pay for the property. * * * Such a promise is clearly implied in the clause, `and charge the same to me,' for it would be unreasonable to assert that, where a person asks the value of property furnished on his order to be charged against him, he intends that the charge shall be a mere idle and senseless form." Garmire v. State, 104 Ind. 444, 4 N. E. Rep. 54, 5 Amer. Crim. Rep. (Gibbons,) 238.

The second ground urged in defendant's motion in arrest of judgment is that "the said instrument in writing, set out in the indictment, is of doubtful and uncertain validity, and is not apparently good on its face; and there are no averments in the indictment showing said instrument to be effectual as a pecuniary obligation." As otherwise stated in appellant's proposition in his second assignment of error, the position assumed is "that the instrument set out in the indictment is of doubtful and uncertain meaning on its face, and there are no innuendo averments in the indictment showing it to be valid and effectual as a pecuniary obligation; and therefore it does not appear from the indictment that an offense against the law was committed. There are no innuendo averments whatever in the indictment explanatory of the said instrument." The sole question for our decision on this appeal is whether the indictment is valid and sufficient without innuendo or explanatory averments as to the words "bare" and "grosses," used in the alleged forged order. "It is an established rule that a written instrument, to be the subject of forgery, must be such as would be valid, if genuine, for the purpose intended. If void or invalid upon its face, and it cannot be made good by averment, the crime of forgery cannot be predicated upon it. In other words, if the instrument is absolutely void upon its face, it cannot be made the subject of forgery; but if the legality be doubtful, and by proper allegations its legality is capable of being shown to the court, it is a subject of forgery." Rollins' Case, 22 Tex. App. 548, 3 S. W. Rep. 759; Anderson v. State, 20 Tex. App. 595; State v. Briggs, 34 Vt. 503. It seems to bean equally well-settled rule that "a writing, so imperfect and obscure that it is unintelligible without reference to extrinsic facts, will not support an indictment for forgery, unless these facts are averred, and by the averment it is made apparent that it has the capacity of effecting fraud." Hobbs v. State, 75 Ala. 1. In Rembert v. State, 53 Ala. 467, which is the most able discussion of the question we have seen, the court says: "The fact that the paper is incomplete or imperfect in itself, and that without the knowledge of extrinsic facts it does not appear that it has the vicious capacity, only renders it necessary that the indictment should aver the extrinsic facts. In all indictments for forgery at common law it was necessary to set out the instrument, so that it would judicially appear to the court that it was the subject of forgery. When the instrument is complete, perfect, and not void on its face, and when it is spoken of as void, illegal in its very frame, or innocuous from its...