Owen v. State, 12632.

• Decision Date: 26 February 1930
• Docket Number: No. 12632.,12632.
• Citation: 26 S.W.2d 251
• Parties: OWEN v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W.2d 251

OWEN v. STATE.

No. 12632.

Court of Criminal Appeals of Texas.

February 26, 1930.

Rehearing Denied April 2, 1930.

Commissioners' Decision.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

E. F. Owen was convicted of forgery of a land title, and he appeals.

Affirmed.

Lewis M. Seay, of Groesbeck, and N. T. Stubbs, of Johnson City, for appellant.

Sam McCorkle, Dist. Atty., of Mexia, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, forgery of land title; penalty, five years in the penitentiary.

W. S. Potter, residing in Tippecanoe county, Ind., was the owner of a large tract of land in Houston county, Tex. He died May 3, 1928. On July 12, 1928, a deed purporting to be signed by W. S. Potter, dated April 25, 1924, and purporting to have been acknowledged before W. O. McElroy, notary public, on the same date, was filed for record by the county clerk of Houston county, Tex. This conveyed to appellant, E. F. Owen, a tract of land hereinafter described.

It was the theory of the state that J. H. Byers, G. T. Gardner, W. O. McElroy, R. O. Kerzee, and appellant had formed and executed together a conspiracy to place of record the title to this land in appellant by the forgery of Potter's name to the deed mentioned above. Both McElroy and Kerzee testified for the state. The substance of McElroy's testimony was that Gardner approached him with a proposition of having him affix an acknowledgment to the above-mentioned deed and that he did so on the 27th day of June, 1928, misdating same so as to make it appear as of date April 25, 1924; that Gardner told him it was a crooked deal but was safe; that for his part in the deal he received a deed to 100 acres of land and $15 in money, together with an agreement that Gardner was to pay him $2,000 for his interest in the land. The deed signed by Gardner as well also as the agreement to purchase the land at a consideration of $2,000 were introduced in evidence. Several statements of an incriminating nature were testified to by McElroy as having been made by both Gardner and Byers, who it seems was an attorney in the town of Mexia. The substance of Kerzee's testimony was that Gardner first approached him toward the latter part of May, 1928, in the town of Mexia, asking him how he would like to have 250 acres of land. "He said he wanted me to sign my name as a witness to a deed." Thereafter appellant approached him, who was then in possession of a deed from W. S. Potter to himself, and at the instance of Gardner and appellant he signed such deed as a witness. After that appellant took possession of the deed. They afterwards met at Judge Byers' office some two or three times. Appellant said to this witness that the proposition was crooked but was safe. He also talked to Judge Byers about it, who likewise assured him it was a safe proposition but was a crooked deal. Afterwards a loan was attempted to be procured on this land by Gardner. The original of the alleged forged deed could not be found. A certified copy of same was introduced in evidence. It was shown that W. S. Potter, on the date the deed was actually acknowledged and witnessed, was dead; that he was not in Texas in April, 1924, and had never been in Texas for about twenty years.

It further appears that appellant conveyed part of this land to Gardner, retaining vendor's lien to secure notes in a large sum in the face of such conveyance, and that such notes were afterwards transferred by appellant to J. H. Byers. Other incriminating facts appear not necessary to here detail.

We regard the evidence as sufficient both to show the commission of the offense in Limestone county and to corroborate the alleged accomplices.

The indictment is under attack upon two grounds: (1) That there is a repugnancy apparent on the face of the indictment in that the forgery is alleged to have occurred on or about the 27th day of June, 1928, while the deed set out in hæc verba shows to be dated April 25, 1924; (2) that the description of the land is so vague and uncertain as to render the deed void as a conveyance without explanatory averments, and which averments the state failed to make in the indictment.

This prosecution was under article 1006 of the Penal Code, which makes it a penal offense, in substance, to make, alter, or forge, or cause to be made, altered, or forged, or to in any way assist, advise, or encourage the making, altering, or forging of any deed in relation to or affecting lands or any interest in lands in this state with the intent to make money or any other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title to lands or any interest in lands, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owner of lands, or with any fraudulent intent whatever. This article is followed in the same chapter by article 1010, which provides, in substance, that upon such an indictment, to warrant a conviction, it shall only be necessary to prove that the person charged took any one step, or did any one act or thing in the commission of the offense, if from such step, act, or thing any of the intentions hereinbefore mentioned, or any other fraudulent intention, may be reasonably inferred; "nor shall it be any defense to a prosecution under this chapter that the matter, act, deed, instrument or thing was in law, either as to substance or form, void," or that the same was not in fact used for the purpose for which it was made or designed; and it shall only be necessary in an indictment under this chapter to state with reasonable certainty the act constituting the offense, and charge, in connection therewith, in general terms, the intention to defraud, without naming the person or persons it was intended to defraud.

These two articles must be construed together. They have recently been construed in the case of Roberts v. State (Tex. Cr. App.) 13 S.W.(2d) 862. It was there held that it is not indispensably necessary that the instrument alleged to be forged be sufficient on its face to convey the legal title. No other construction seems possible under the express terms of the statute quoted above. The appellant here contends that the law presumes that a deed was executed on the date which it bears, and cites civil cases to support his contention. He reasons from this that, since the law presumes the deed in question was dated April 25, 1924, there is an express repugnancy between it and the allegation that the deed was forged on or about June 27, 1928. We are not able to follow the logic of a proposition which asserts that a deed specifically alleged to be forged is presumed by law to be correct. The case of Hickman v. State, 44 Tex. Cr. R. 533, 72 S. W. 587, is cited by appellant in support of his contention. This was a prosecution under article 979, which charged the forgery of a negotiable instrument. There is a manifest difference between such an instrument and the one under discussion. The forgery of the two instruments constitutes entirely distinct offenses and relates to entirely different written instruments, whose legal effect is governed by different rules. We will not here discuss the legal status of a misdated or undated negotiable instrument, as it seems unnecessary. A deed takes effect from the date of delivery, and is good without a date or with a false or impossible date where the real date of delivery can be proven. 18 C. J. 187; Webb v. Huff, 61 Tex. 677. Its true date may be shown by parol, regardless of the written date thereon. Dunn et al. v. Taylor et al. (Tex. Civ. App.) 107 S. W. 952.

This land is described in the indictment as being: "In the F. Del Valle Eleven League Grant in Houston County, Texas, located about 15 miles Southwest of Crockett, on the Trinity River, known as the McGary & Gillespie lands and covers and includes all the lands and premises formerly owned by C. G. Fowler and Bert J. Kaull, and is the same land contracted for sale to E. F. Owen and Dee Black on November 20th A. D. 1923, there being 4,465 acres, more or less, covered and conveyed hereby."

A deed is not necessarily void for uncertainty of description if the description of the premises conveyed is capable of being made certain. Lohff v. Germer et al., 37 Tex. 578. See, also, Harris v. Iglehart et al., 52 Tex. Civ. App. 6, 113 S. W. 170. If this description is not upon its face sufficiently definite, that it can be made so by extrinsic proof is too apparent to require discussion. In matters of description, the latin maxim, "Id certum est quod certum reddi potest," applies. We have mentioned the rule pertaining both to the date and to the description of the premises in a deed to show that this instrument is not void upon its face for uncertainty of description, and, the date not being a vital part...