Howard v. State

• Decision Date: 24 June 1896
• Citation: 36 S.W. 475
• Parties: HOWARD v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 475

HOWARD v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1896.

Appeal from district court, Harris county; E. D. Cavin, Judge.

P. Howard was convicted of forgery, and appeals. Affirmed.

Norman G. Kittrell, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and given two years in the penitentiary.

1. The indictment is in the following form as to the charging part: That said P. Howard, "with intent to injure and defraud, did willfully and fraudulently make a false instrument in writing, which said false instrument in writing is to the tenor following: `Houston, Texas, Feby. 7, 189_. No. 201. Planters' & Mechanics' National Bank pay to P. Howard, or order ($25.00) twenty-five dollars. John Finnigan & Co.,'—contrary to law and against the peace and dignity of the state." Appellant filed a motion in arrest of judgment on the ground, "that the indictment does not charge any offense, and specifically sets up that, while the instrument purports to be signed by John Finnigan & Co., there is no allegation who or what John Finnigan is or are. So far as revealed by the indictment, John Finnigan & Co. may be an individual, a firm, or a corporation. Because there is no allegation who composed or constituted the said firm of John Finnigan & Co., the evidence revealing that the same is a firm composed of two partners, but who such partners are is not alleged, as is necessary under the law. Because it is not alleged that said instrument purported to be the act of another, the mere signature of John Finnigan & Co. not disclosing who or what John Finnigan & Co. was or were." Appellant insists that this case comes squarely under the decision of Labbaite v. State, 6 Tex. App. 483. The indictment in that case had a purport clause, which is not so in the present case. The allegation in the indictment in said case is that it purports to be the act of White & Gibson, but it is stated in the decision that these are simply the surnames of two persons, and their given names are not stated, and it is not stated that they are partners; and the court proceeds to apply the same principle to the allegation of names of the alleged forged persons as is applicable to the owners of stolen property in theft. The case of State v. Harrison, 69 N. C. 143, is also referred to as authority upon this point. The charge in that case was for forging a duebill in the following words: "Due to Wm. H. Harrison for filling of rosin and storing of spirits, $50.00, payable 25th of August. Williams & Murchison,"—"with intent to defraud one George W. Williams and one Daniel M. Murchison, against the form of the statute in such case made and provided, and against the peace and dignity of the state." The court says in that case: "The indictment charges that the defendant forged the name of the firm of Williams & Murchison with intent to defraud George W. Williams and Daniel M. Murchison, and there was evidence tending to show that he did forge the name of the firm with intent to defraud the firm, but there was no evidence that George W. Williams and Daniel M. Murchison were the individual members of the firm, and therefore there was no evidence that the intent was to defraud George W. Williams and Daniel M. Murchison;" and the case was reversed on this ground. It will be noticed that in the first case there was a purport clause, and in the last that there was an allegation of an intent to defraud two certain persons, giving their full names, and the case went off on the proof that there was no evidence that George W. Williams and Daniel M. Murchison were the individual members of said firm. With reference to the first case, it may be stated that we are inclined to differ with the court rendering said opinion to the effect that the same particularity is required in alleging the names of the persons whose names are forged as is required in alleging the ownership of stolen property. On this point we quote from Mr. Bishop as follows: "If the intent is to defraud a firm, the allegation is not required to be in the form essential in laying ownership. There the indictment must set out all the names of joint owners; but here, when a forger means to defraud two or more persons, whether constituting a firm or not, his intent is also to defraud each of them. Therefore the indictment may lay it as to all or as to one or more, less than all, at the pleader's pleasure." See 2 Bish. Cr. Proc. § 424. We quote from a note to Wharton's Precedents of Indictments and Pleas (volume 1, p. 282, 4th Ed.), as follows: "All the partners in a firm need not be set out in averring the intent to defraud. Thus, where the first count charged the offense to be committed with intent to defraud D. L. and D. L., Jr., and the second count stated the offense to have been committed with intent to defraud the president and directors of said company, and the fourth count, etc., with intent to defraud D. L., the court, on motion in arrest of judgment, held that the omission of one of the partners in one count and two of them in another was not fatal; for the acquittal on such indictment will always be a bar to another prosecution for the same forgery, though laid with intent to injure some other person." The ordinary form of an indictment at common law contained a purport clause, and the rule seems to have been that the indictment should allege an intent to defraud some particular person. See 1 Whart. Prec. Ind. p. 274, 282. But under our system it is not necessary to set out the purport clause, nor is it necessary that the allegation contain an averment that the act was done with intent to defraud some particular person. It is sufficient merely if the instrument be set out by its tenor, and that the indictment contain an allegation that the same was made by the defendant without lawful authority, and with intent to defraud. See Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248. However, it has been held in a number of cases that where the indictment contains a...