Mitchell v. State, 30856
| Decision Date | 04 November 1959 |
| Docket Number | No. 30856,30856 |
| Citation | 330 S.W.2d 459,168 Tex.Crim. 606 |
| Parties | Edward L. MITCHELL, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Seymour Lieberman, Houston, for appellant.
Dan Walton, Dist. Atty., Howell E. Stone, Asst. Dist. Atty., Houston, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is passing as true a forged instrument in writing; the punishment two years.
The sole ground for reversal relates to the sufficiency of the indictment, the contention being that the trial court erred in overruling the defendant's motion to quash; motion for instructed verdict, and motion for new trial.
Appellant's position is that the instrument set out in the indictment without explanatory averments is insufficient to constitute forgery, hence could not support the count of the indictment predicated upon its passing.
The instrument alleged to be forged is a conditional sales contract and reads:
'Conditional Sales Agreement
'This agreement, made and entered into by and between Edward L. Mitchell dba Washmobile Company of Texas of Houston, Harris County, Texas hereinafter referred to as Washmobile Company and Charles I. Tweedel, Jr. of Port Arthur (City) Jefferson County, Texas State, hereinafter referred to as Purchaser.
'Witnesseth:
'The Purchaser hereby orders from Washmobile Company and does hereby purchase one complete automatic car was laundry more specifically described as follows:
'1--2--30 H. P. Dryer
'1--2 1/2 H. P. conveyor--100 Ft.--15 hooks
'1--pre-rinse
'1--Final rinse
'1--Auto--side brushes--nylon
'1--Auto--Top brushes--nylon
'2--230 Auto--Steam cleaners
'1--5 H. P. Vacuum, with all accs.
'1--Auto. Wheel Washer for a total consideration of the sum of $18,395.00 to be payable in cash at the time of completion of installation of said equipment.
'The said Washmobile Company does hereby agree to sell the aforementioned equipment for the consideration set out above F.O.B. either Chicago or California (all freight charges to destination to be borne by Purchaser) and further agrees to erect and install said equipment in proper operating condition to the electrical outlets and plumbing connections specifically installed at the premises designated by Washmobile Company on the premises in accordance with the plans and specifications for the building to be furnished by the Purchaser. In the event the plans and specifications furnished by the Purchaser make it impractical to make such connections to utilities referred to above, the Washmobile Company shall have the option either to require said plans and specifications changed accordingly or to make such corrections as necessary in the physical premises and charge the purchaser for the additional material and labor required thereby.
'Purchaser hereby deposits the sum of $2,395.00 as down payment on said equipment and does hereby agree to pay the balance of $16,000.00 at the time of completion of said installation. The completion of said installation shall be contigent, of course, upon its proper functioning for a period of twenty-four (24) hours in test run.
'The Purchaser shall, within a period of 30 days after the execution of this agreement, furnish to Washmobile Company a suitable location under proper lease or ownership suitably prepared with all foundation, drive-way and utility work complete to permit said equipment installation. In the event the Washmobile Company is prevented, for any reason outside of their own fault or control, to install said equipment within 60 days thereafter the Washmobile Company may, at its option, declare a forfeiture of downpayment and keep said sums as liquidated damages and expense.
'Washmobile Company agrees that said equipment shall be new in first class condition properly installed and in proper working condition. Washmobile Company further agrees that such installation shall be complete within 30-60 days after the premises are ready.
'It is specifically understood and agreed that time is the essence of this contract. It is further agreed that the Purchaser will pay all freight charges of the public carrier for delivering equipment from Chicago or California as previously referred to and that in the event the premises are not suitable for the storage of the equipment upon its arrival that the Purchaser shall be responsible for storage charges in a proper and safe place. In the event the Purchaser fails to make arrangements for proper storage, Washmobile Company shall have the option of making such arrangements and charging Purchaser for the cost thereof.
'It is specifically understood and agreed between the parties that Washmobile Company retains a lien on said equipment until the full completion of this contract including any additional proper charges having been paid to Washmobile Company by the Purchaser.
'It is agreed that this contract shall not be cancellable after execution hereof and that is constitutes a binding and specific agreement.
'The Washmobile Company reserves the right to assign this contract or the proceeds therefrom.
'Washmobile Company further agrees that the equipment properly installed and functioning will be delivered to the Purchaser free of any lien or obligation of any nature.
'In Witness Whereof we hereby set our hands this the 8th day of March A.D., 1955.
'Washmobile Company of Texas
'By Edw. L. Mitchell
'Edward L. Mitchell
'Proprietor
Witnesses:
________
________
________
________
'Purchaser
'Charles I. Tweedel, Jr.
'Owner'
Appellant cites Cagle v. State, 39 Tex.Cr.R. 109, 44 S.W. 1097, 1099, and relies especially upon the following quotation therefrom:
'If, however, the paper is not one of the ordinary instruments used in commercial transactions, but is contractual in form, and depends on extrinsic facts to create a liability, then it would appear that such extrinsic facts must be averred in the indictment.'
The conditional sales contract set out in the indictment, on its face, clearly imports...
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...and within the limitations period. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997) (citing Mitchell v. State, 330 S.W.2d 459, 462 (Tex. Crim. App. 1959)); see also TEX. CODE CRIM. PROC. ANN. art. 21.02, §6 (Vernon 2006); Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. A......
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