Keagan v. State, s. 66939
| Decision Date | 10 June 1981 |
| Docket Number | No. 3,Nos. 66939,66940,s. 66939,3 |
| Citation | 618 S.W.2d 54 |
| Parties | Patrick Richard KEAGAN, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
George R. Trimber, Fort Worth, for appellant.
Tim Curry, Dist. Atty., C. Chris Marshall, George Kredell and M. Eugene Grant, Jr., Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
These are appeals from orders revoking appellant's two probations, which appeals we have consolidated.
Appellant makes no complaint regarding the hearing on the State's motions to revoke his probations, but contends that the orders of revocation are invalid, claiming they are predicated upon void indictments, to which he pled guilty and was accorded two probations. He, thereafter, by violating several conditions of his probations, caused the trial court to revoke the probations.
Due to his complaints, we set out the two indictments in pertinent part.
... on or about the 14th day of February 1979, (appellant), did then and there intentionally and knowingly with intent to defraud and harm another, pass to Jo Ann Duty, a forged writing knowing such writing to be forged, and such writing had been so made that it purported to be the act of Clarence W. Hart who did not authorize the act, and said writing was a check of the tenor following:
AREA SURVEYING CO. 5080
P. O. BOX 15643 293-5684
FORT WORTH, TEXAS 76119 FEBRUARY 14, 1979
RICHARD KEAGAN $135.00
AREA SURVEYING CO. $135 AND 00 CTS DOLLARS
ADVANCE
FOREST HILL STATE BANK
FORT WORTH, TEXAS CLARENCE W. HART
111905793 701 268 5 00000 13500
NO. 16,707
... on or about the 14th day of March, 1979, (appellant) did then and there intentionally and knowingly with intent to defraud and harm another, pass to Judy Eck, a forged writing knowing such writing to be forged, and such writing had been so made that it purported to be the act of Brent Mezell who did not authorize the act, and said writing was a check of the tenor following:
FULTON & MIZEL SURVEYING, INC. FIRST OF FORT WORTH $700
1020 MACON ST., SUITE 12 (817)335-3625 THE 1ST NATIONAL BANK OF FT. WORTH
FORTH WORTH, TEXAS 76102
DECEMBER 16, 1978
PAY TO THE ORDER OF
PATRICK KEAGAN $23.49
TWENTY-THREE AND 49/100 DOLLARS
THIS CHECK IS IN FULL SETTLEMENT OF ACCOUNT AS SHOWN HEREON
1978
12-16 EXPENSE ADVANCE $25.00
S.S. 1.51
$23.49
/S/ BRENT MIZELL
Appellant claims the first indictment is void because: "This indictment was fatally defective because there was an ambiguity in the tenor clause." His contention is bottomed upon the word "advance," he complaining that "there is nothing in the indictment to explain the meaning of this word," and urges "that it is well settled law that the indictment must explain every ambiguous or meaningless expression contained therein." He relies upon Roberts v. State, 138 Tex.Cr.R. 39, 133 S.W.2d 974 (1939), for authority.
Appellant's reliance upon Roberts, supra, is misplaced for there this Court was confronted with a document, the face of which showed it could have bee neither (1) a promissory note, (2) a conditional sales contract, or (3) a chattel mortgage. We simply held in Roberts that "inferences are not allowable in an attempt to assist the pleader in setting forth in an indictment in plain and intelligible language the violation of the law that is the basis of the complaint." We did not hold, however, that every unintelligible word in a forgery indictment must be explained. Roberts was predicated upon the decision of McBride v. State, 48 Tex.Cr.R. 213, 88 S.W. 237 (1905), upon which appellant also relies. In Roberts, quoting from McBride, we said:
'If the instrument in writing alleged to be forged contains unintelligible words or abbreviations, or misspelled or ambiguous words or figures, the indictment should explain what was intended thereby,' citing Colter v. State, 40 Tex.Cr.R. 165, 49 S.W. 379; Crawford v. State, 40 Tex.Cr.R. 344, 345, 50 S.W. 378; Polk v. State, 40 Tex.Cr.R. 668, 51 S.W. 909; Lynch v. State, 41 Tex.Cr.R. 209, 211, 53 S.W. 693; Lamb v. State, 67 Tex.Cr.R. 474, 148 S.W. 1088.
In 19 Tex.Jur. p. 852, we find the following:
'Irrespective of the character of the instrument involved, the indictment must explain every ambiguous or meaningless expression contained therein,' citing authorities. Id. at 976.
The State responds as follows and also contends that McBride, supra, has been overruled by Lamb v. State, 67 Tex.Cr.R. 474, 148 S.W. 1088 (1916), and argues as follows:
The check appears on the indictment in haec verba. The term "advance" appears below the payee clause of the check and above the name of the payor bank. It is clear that the term 'advance' was placed on the check as the reason for making the check. In that context, it is readily apparent that the term 'advance' is meant for 'advance payment', a term well known in the commercial world as a payment made in anticipation of a contingent or fixed future liability. Therefore, the term 'advance' was not required to be explained in the indictment and no error is shown under Appellant's second ground of error.
Although the State is correct that a panel of this Court did overrule Lamb, supra, in McNeese v. State, 596 S.W.2d 906 (1980), upon which appellant also relies for authority, its inference that McBride, supra, was also overruled by McNeese, supra, is erroneous.
In McNeese, Judge Dally clearly pointed out that the words on the check involved reflected "One Hundred Twenty-Seven Dollars," whereas the figures reflected "$127.90." By provisions of the applicable section of the Business and Commerce Code, see Sec. 3.118(3), V.T.C.A., "Words control figures except that if the words are ambiguous, figures control." In Lamb, the words were "Fifty Cents and 75/100 Dollars" and the figures were $50.75." If the same case were before us today, we would construe the check to be in the amount of $50.75. " However, the court in (Lamb ) did not discuss the applicable law of negotiable instruments," which we did in McNeese. Furthermore, the case of McNeese involved a motion to quash an indictment, whereas here appellant is claiming that the indictment is null and void. In a collateral attack upon an indictment, before relief is mandated, the indictment must be so defective as to state no offense at all against the laws of this State. See American Plant Food Corp. v. State, 508 S.W.2d 598 (1974), appeal dismissed 419 U.S. 1098, 95 S.Ct. 767, 42 L.Ed.2d 795 (1975). We find this indictment does state an offense.
We agree with the State that the word "advance," in its strictly etymological significance, has an ordinary, common and well known meaning in both common parlance as well as in the commercial world. It indicates money was paid before or in advance of the proper time for payment, and implies a looking forward to a time when the money will be due the recipient. See Pargman v. Maguth, 64 A.2d 456, 458, 2 N.J.Super. 33 (Super.Ct.App.Div.1949). In sum, the word "advance" is such a common, well known word that, as applied to this cause, it is clear from the indictment that the word was placed on the check as the reason for issuing or giving the check.
We, therefore, disagree with appellant and overrule his contention. We hold for the above reasons that where the forged instrument is a check, it is not necessary for the indictment to explain the meaning of the word "advance," should the word appear on the forged check.
As to the second indictment, appellant claims it is void because "there is a variance between the purport and tenor clauses as to the name of the maker," his complaint being bottomed upon the apparent discrepancy between the names "Brent Mezell" and "Brent Mizell," he contending this constitutes a fatal variance between the clauses. We disagree.
The State agreed with appellant in its brief filed in the trial court and the trial court also agreed that this was reversible error. The trial court, however, wrongfully chose to treat appellant's brief as a "Petition for Writ of Habeas Corpus," cf. Art. 11.07, V.A.T.C.C.P., hereinafter cited as C.C.P., 1 but recommended that this Court grant relief.
By the provisions of Art. 40.09, C.C.P., a trial court has no authority to treat a case properly appealed in the same posture or context as one originating under Art. 11.07, supra. Art. 40.09, Sec. 12, C.C.P., is explicit by its mandatory wording:
It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court. (emphasis added)
Under our appellate procedure, it is first the duty of the trial court to decide whether the defendant should be accorded any relief in his appeal. This statutory duty may not be relegated or delegated to this Court by giving the appellant's appeal a different name. Only if the trial court refuses to grant an appellant a new trial shall the cause be transmitted to this Court. See Art. 40.09, Sec. 12, C.C.P.
We will therefore, as the cause was transmitted to this Court pursuant to Art. 40.09, C.C.P., treat the action of the trial court as denying appellant a new trial.
It is first observed appellant is making a post-conviction, collateral attack upon the indictment.
It is axiomatic that an indictment which is fundamentally defective will deprive a trial court of jurisdiction and will not sustain a judgment of conviction. A judgment...
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