Pospishel v. State

• Decision Date: 06 June 1923
• Docket Number: (No. 7773.)
• Citation: 255 S.W. 738
• Parties: POSPISHEL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 738

255 S.W. 738

POSPISHEL v. STATE.

(No. 7773.)

Court of Criminal Appeals of Texas.

June 6, 1923.

Rehearing Granted November 14, 1923.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Emanuel Pospishel was convicted of forgery, and he appeals. Reversed, and prosecution ordered dismissed.

Fred L. Perkins, of Houston, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for forgery with an assessed penalty of two years in the penitentiary. No statement of facts or bills of exception appear in the record. Appellant entered a plea of guilty, and applied for a suspended sentence. In the state of the record we must assume the proceedings were regular.

The judgment is affirmed.

On Motion for Rehearing.

No motion was presented in the court below either to quash or in arrest of judgment questioning the sufficiency of the indictment, and for the first time its validity is challenged upon motion for rehearing. It seems to be well settled that, if the indictment upon its face charges no offense, it may be raised for the first time in this court, because the defect is one of substance. White v. State, 1 Tex. App. 211; Holden v. State, 1 Tex. App. 225; Cox et al. v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Woolsey v. State, 14 Tex. App. 57; Maddox v. State, 14 Tex. App. 447; Gonzales v. State, 58 Tex. Cr. R. 141, 124 S. W. 938; Dunn v. State, 71 Tex. Cr. R. 89, 158 S. W. 300; Jasper v. State, 73 Tex. Cr. R. 197, 164 S. W. 851; Ryan v. State, 76 Tex. Cr. R. 510, 176 S. W. 49.

In Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928, it was recognized that if the defect be one of substance advantage of it could be taken for the first time on appeal. We are not discussing or considering lack of form or duplicity. The distinction between those defects and one of substance is clearly drawn in Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367.

Whether failure in an indictment to charge an offense is a defect of substance is not left to conjecture. Article 575, Code Criminal Procedure, settles that question. We quote from such article as follows:

"There is no exception to the substance of an indictment or information, except — 1. That it does not appear from the face of the same that an offense against the law was committed by the defendant."

Then follow three other matters which are denominated defects of substance not material in this discussion. It only remains, then, to determine if from the face of the indictment in the present case it fails to appear that the offense of forgery was committed by appellant. If it does so fail to show upon its face then the judgment must be reversed and the prosecution dismissed; otherwise not.

The instrument declared to have been forged is set out in the indictment as follows:

"Western Union Telegram. Nov. 29 P M 427 Nov. 29 JD Houston, Texas, 1922. Mrs. M. Neustadt, 4135 W. Lake St. Chicago, Illinois Wire hundred fifty dollars at once. Letter following will explain. Waive identification. Must have it. Harry. J. Bainbridge, Harry Neustadt, Burnett Hotel."

There are no explanatory averments whatever. Whether the words "J. Bainbridge, Harry Neustadt, Burnett Hotel," were a part of the original telegram as filed in the telegraph office for transmission, or whether they were notations placed upon the telegram by some one other than the purported maker, does not appear. The instrument is not an ordinary commercial instrument, and there are no allegations whatever explaining who "Harry" is supposed to be, nor the relations existing between him and the party to whom the telegram is addressed. In Cagle v. State, 39 Tex. Cr. R. 109, 44 S. W. 1097, the court was considering a purported release of a landlord's lien on six bales of cotton. The release was copied in the indictment with no explanatory averments accompanying it. The indictment was held bad. The general rule for testing the sufficiency of indictments in forgery prosecutions was announced in that case in the following language:

"It may be considered a safe test, if the instrument is such on its face that it imports an obligation in regard to money or property, and will afford the basis of a civil action without resorting to extrinsic testimony, then a charge of forgery can be based thereon without any extrinsic averments. If the instrument is not of that character, but by the aid of extrinsic averments does create an obligation or liability with reference to money or property, then, by the aid of such extrinsic averments, it can be made the subject of forgery. Under this rule it is apparent that a promissory note, a check, draft, or order for money, plain and unambiguous in its terms, is the subject of forgery without any extrinsic averments. If the meaning of the paper itself is not clear, but of doubtful...