Johnson v. State

• Decision Date: 04 December 1895
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 231

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1895.

Appeal from district court, Rusk county; W. J. Graham, Judge.

H. A. Johnson was convicted of forgery, and appeals. Affirmed.

Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for two years. The forgery is assigned upon the following instrument: "No. 78. Henderson, Texas, June 2nd, 1894. A. Wettermark & Co., Bankers, pay to the order of H. A. Johnson, or bearer, three hundred dollars. L. M. Pratt & Co. $300.00." Indorsed: "H. A. Johnson." The indictment alleges that said instrument was forged, with intent to injure and defraud. It does not allege that Pratt & Co. were the parties intended to be defrauded. Upon the trial the state proposed and did prove, over the objection of appellant, for the purpose of establishing the fact that L. M. Pratt & Co. had not signed, or authorized any one else to sign, the firm name to the draft, that L. M. Pratt & Co. was a fictitious firm or company, and that there was no such company or persons of that name in the country. This proof was made, and established, when taken in connection with all the circumstances attending this transaction, the forgery beyond any question. The objection of appellant was that the indictment, failing to allege that L. M. Pratt & Co. was a fictitious name, such proof could not be made in the absence of such an allegation. If the indictment had alleged that the forgery was with intent to injure or defraud L. M. Pratt & Co., and it should have developed that L. M. Pratt & Co. was a fictitious company, the indictment would have been fatally defective. It would have been inconsistent with the fact, for the accused could not have intended to defraud a person or corporation that did not exist. 2 Bish. Cr. Law. § 543. At common law, while it was the practice to name the party intended to be defrauded or injured, still an indictment was sufficient which failed to do this. In this state we have held that it was not necessary to the sufficiency of the indictment for it to name the person intended to be injured or defrauded. Under such an indictment proof can be made that the party whose name was signed to the instrument was a fictitious person or company. 2 Bish. Cr. Law, § 543; State v. Givens, 5 Ala. 747; People v. Peabody, 25 Wend. 472; People v. Davis, 21 Wend. 309. The question before us is not whether the party who...