Joiner v. State

• Decision Date: 20 April 1904
• Citation: 80 S.W. 531
• Parties: JOINER v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 531

JOINER v. STATE.

Court of Criminal Appeals of Texas.

April 20, 1904.

Appeal from District Court, Llano County; Clarence Martin, Judge.

A. W. Joiner was convicted of forgery, and appeals. Reversed.

Flack & Dalrymple, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of forgery, and his punishment assessed at two years' confinement in the penitentiary. Omitting formal portions, the indictment charges that appellant "did then and there unlawfully, without lawful authority, and with intent to injure and defraud, did willfully and fraudulently make a certain false instrument in writing, purporting to be the act of another, to wit, purporting to be the act of W. H. Campbell, and purporting to be the act of C. C. Gibbs, president and general manager of the Texas Telegraph & Telephone Company, a corporation organized under and by virtue of the state of Texas, which false instrument was signed also by the said A. W. Joiner, and is to the tenor as follows:

                                     Form 21
                    The Texas Telegraph and Telephone Company
                           To A. W. Joiner, Cashier, Dr
                              Address, Llano, Texas
                  Voucher No. 598
                  ---------------------------------------------------------------
                  Dec. 14. For Wages and Salaries Pay roll for
                              December .................................. 486 90
                          This voucher, when properly signed
                           will be paid by W. P. Ferguson,
                           Treasurer, Hearne, Texas.
                  ---------------------------------------------------------------
                  I certify the above | Examined and audited,  |   Approved for
                    to be correct.    |   $486.90.             |     payment.
                    W. H. Campbell.   |  A. W. Joiner,         |    C. C. Gibbs,
                                      |        Auditor.        |   Pres. & Gen'l
                                      |                        |    Mg'r.
                  ---------------------------------------------------------------
                     Received ...... 190-, from The Texas Telegraph &
                  Telephone Co. ...... Dollars, in full of the above
                  claim.
                  $ ............
                     READ THIS. The above receipt must ............
                  be dated and signed by the party in
                  whose favor this voucher is made out,
                  or when signed by another party, the
                  authority for so doing must in all cases
                  accompany it."
                

The second count charges appellant with passing the same instrument.

The indictment is attacked in motion in arrest of judgment, in that it does not charge that the instrument would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have in any manner transferred or have affected any property, and that it does not import a legal liability or obligation, nor any extrinsic averments which would show that such instrument imports a legal liability or obligation, and that it is uncertain and indefinite, in that it charges "for wages and salaries pay roll for December 486 90," and that this statement could not be understood without innuendo or explanatory averments, and that the indictment does not contain either explanatory or innuendo averments; that the instrument does not show, nor attempt to show, whether it was the act of the telegraph and telephone company, by and through its president and general manager, Gibbs, or whether in fact Gibbs was the manager and president, or whether it is the act of Gibbs as president or an individual, and that there are no allegations or averments in any way connecting Campbell with said company, as to whether he was an officer connected with the company, or an individual disconnected with the company, and that there is also a variance between the purport and tenor clauses, in regard to the signature of A. W. Joiner; that the purport clause charges him with forging said instrument, and the tenor shows that it was signed by him as auditor. It is also claimed that there is a variance between the allegation and proof; that the instrument set out in the indictment does not show the receipt at the bottom of the alleged forged instrument was filled out at the time it was alleged to have been forged or passed, while the evidence introduced shows the receipt was filled out at the time of the execution of the instrument, at least at the time it was passed. We believe these grounds are well taken. The term "wages and salaries pay roll...