Lassiter v. State

• Decision Date: 11 March 1896
• Citation: 34 S.W. 751
• Parties: LASSITER v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 751

LASSITER v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

William Lassiter was convicted of forgery, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at five years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. There is no statement of facts in the record.

Appellant excepted to the introduction of a patent issued by the state of Texas, purporting to grant the land described therein to John Cotton, assignee of Green B. Watkins, and situated in Wood county. Appellant, as grounds of exceptions, says: (1) That the patent shows upon its face to be a grant of land to John Cotton, as assignee of Green B. Watkins, thus showing the title in John Cotton; and there is no allegation showing the land or title to be in John Cotton, or in John Cotton, Jr., the person purporting to be the grantor in the deed in question. (2) The proof intended by the introduction of the patent is at variance with the allegations in the indictment, and, besides, it is sought by the patent to prove a case and state of facts not alleged in the indictment. (3) There is a variance in the identity of the land set forth in the patent and that described in the indictment, and there is an absence of allegation to show that it is the same land. The patent in this case is not before us, so that we are unable to tell what it does show; nor does the bill of exceptions show the portion of the patent in this regard. Concede, however, that the patent purported to grant the land described therein to John Cotton, assignee of Green B. Watkins, it could not constitute a variance between the indictment and said patent. The allegation of the indictment was "that the defendant forged a certain false instrument in writing, purporting to be the act of another, to wit, the act of John Cotton, Jr." The abbreviation "Jr." may be rejected as surplusage; or, if we had the testimony in the case before us, it might show that John Cotton, Jr., was not the John Cotton to whom the patent itself issued; or it might show from the proof that, although the land was granted to John Cotton, the land in fact descended from him to his son, who was John Cotton, Jr., and the act might have purported to be the act of such John Cotton, Jr. What we say in this regard is that, not having the testimony before us, we are unable to say that such patent was improperly introduced in evidence. We cannot say there is any variance in the identity of the land set forth in the patent and that described in the indictment, inasmuch as the patent is not before us. The indictment in this case sets out a deed perfect in all its parts, after the ordinary form of a deed, but same has no certificate of acknowledgment thereon, and is not signed by two witnesses. The state, as appears from bill of exceptions, offered in evidence the deed (a copy of which is set out in the indictment), but said deed had appended thereto an acknowledgment, purporting to have been made and executed by the grantor before one T. J. A. Brown, a notary public of Dallas county, Tex. Appellant objected to the introduction of said deed, because the deed offered shows as a part thereof a certain acknowledgment made by T. J. A. Brown, a notary public of Dallas county, Tex., who certified that John Cotton personally appeared before him and acknowledged that he had executed the same, etc.; because, he says, that in the deed set forth in the indictment there is no such certificate of said officer; because there is a variance in this respect between the deed set out in the indictment and the deed offered in evidence. He also insists that said deed as set out in the indictment is not a perfect deed, and so not the subject of forgery. We will treat both of these propositions together.

The indictment in this case was brought under article 550, Rev Pen. Code, which provides as follows: "Every person who falsely makes, alters, forges, or counterfeits, * * * any certificate, field notes, return, map, plat, report, order, decree, record, patent, deed, power of attorney, transfer, assignment release, conveyance or title paper, or acknowledgment or proof of acknowledgment, or certificate...