Millsaps v. State
| Decision Date | 26 January 1898 |
| Citation | 43 S.W. 1015 |
| Parties | MILLSAPS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, McLennan county; Samuel R. Scott, Judge.
E. F. Millsaps was convicted of forgery, and he appeals. Reversed.
Cunningham, Cunningham & McCollum, for appellant. Mann Trice, for the State.
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of 2½ years; hence this appeal.
No statement of the facts appears in the record. The only questions raised are as to the sufficiency of the indictment and the charge of the court. The charging part of the indictment is as follows:
"One E. F. Millsaps, without lawful authority, and with intent to injure and defraud, did willfully and fraudulently make a false instrument in writing, which said false instrument is to the tenor following:
Incorporated under the Laws of the State of Texas.
Number. Shares
00. Waco Hardware Company, Waco, Texas. Ten
This certifies that E. F. Millsaps is the owner of ten shares, of one hundred dollars each, of the capital stock of Waco Hardware Company, full paid and non-assessable, transferable on the books of the corporation, in person or by attorney, on surrender of this certificate.
In witness whereof, the duly authorized officers of this corporation have hereto subscribed their names, and caused the corporate seal to be hereto affixed, Waco, Texas, this first day of Oct., A. D. 1896.
C. H. Storey, Secretary. Ed Strauss, President
Shares
100
Each
—"And which said false instrument, as herein and heretofore set out, purports to be the act of the `Waco Hardware Company, Waco, Texas,' being then and there a corporation, against the peace and dignity of the state."
On the trial, appellant objected to the introduction of the forged instrument, on the ground that there was a variance between the instrument offered in evidence and the purport clause of the indictment, and, in the motion for a new trial and in arrest of judgment, set up the fact that there was a fatal variance between the purport and tenor clauses of the indictment, in this: "The tenor clause sets out an instrument signed `C. H. Storey, Secy.," and "Ed Strauss, President," and the indictment alleges that the forged instrument purports to be the act of "Waco Hardware Co., Waco, Texas." Referring back to the indictment, it will be seen that his contention in this respect is correct. No doubt, the idea of the pleader was that, inasmuch as the corporation acted by its officers, it was proper simply to allege that it purported to be the act of the corporation, whereas in truth and in fact it simply purported to be the act of C. H. Storey, secretary,...
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Johnson v. State
...44, 18 S. W. 812; Grande v. Same, 37 Tex. Cr. R. 51, 38 S. W. 613; Wheeler v. Same, 38 Tex. Cr. R. 71, 41 S. W. 615; Millsaps v. State, 38 Tex. Cr. R. 570, 43 S. W. 1015. In Millsaps v. State, 38 Tex. Cr. R. 570, 43 S. W. 1015, this charge was given: "And in this connection you are also cha......
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...rehearing and also those furnished in a supplemental list since the case was orally presented. Among them are the following: Millsaps v. State, 38 Tex.Cr.R. 570; 43 S.W. 1015; Lynch v. State, 41 Tex. Cr.R. 209, 53 S.W. 693; Black v. State, 42 Tex.Cr.R. 585, 61 S.W. 478; Carrell v. State, 79......
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...discussion of the matter. The cases are numerous, and in point to the effect that this motion to quash is well taken. Millsaps v. State (Tex. Cr. App.) 43 S. W. 1015; Stephens v. State, 36 Tex. Cr. R. 386, 37 S. W. 425; Campbell v. State, 35 Tex. Cr. R. 182, 32 S. W. 899; Gibbons v. State, ......
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Ames v. State
...Sec. 1580, and cases cited therein. This is true even though it was unnecessary to include a purport clause. Millsaps v. State, 38 Tex.Cr.R. 570, 43 S.W. 1015. The issue presented is, then, whether a purport clause that merely describes the act of endorsement rather than an act of a named p......