Richards v. State
| Citation | 29 S.W.2d 367 |
| Decision Date | 12 February 1930 |
| Docket Number | No. 12727.,12727. |
| Parties | RICHARDS v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
Ben C. Richards, Jr., was convicted of forgery, and he appeals.
Affirmed.
Tipps & Puckitt and Baskett & De Lee, all of Dallas, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
The offense is forgery; the punishment confinement in the penitentiary for three years.
Appellant and W. T. Ramsey entered into a wager upon the outcome of the senatorial race for the Democratic nomination. Appellant placed the money of Morris Mayfield on Earle B. Mayfield, and Ramsey placed his money on Tom Connally. Each party bet $1,000; one O. L. Matthews being the stakeholder. Matthews was an employee of the Republic National Bank of Dallas. The money was placed in the form of two cashier's checks issued by the Republic Bank and payable to O. L. Matthews. It was agreed that the money was to be paid to the winner on Saturday after the election, and that appellant and Ramsey were each to be present when the money was paid to the winner. A. A. Crabb, an accomplice witness, testified that he went to Waco at the instance of appellant and sent a telegram to appellant at Dallas, purporting to be from W. T. Ramsey; that he signed the name "W. Tom Ramsey" to the telegram; that he stated in the telegram that he had been called to South Texas, and that Clyde R. Vest was authorized to receive the money he had bet on the election. He further testified that he sent another telegram signed "W. Tom Ramsey" to O. L. Matthews, the stakeholder, in which he advised him to deliver the checks to Clyde R. Vest; that he also prepared a letter of authority to O. L. Matthews purporting to be from W. Tom Ramsey, upon which letter he placed a notary seal he had borrowed for the purpose; that, the bet having been won by Ramsey, he (Crabb) returned to Dallas at the instance of appellant, went to the Republic Bank, and posed as Clyde R. Vest; that appellant identified him in the presence of O. L. Matthews as Vest; and that, in the presence and at the instigation of appellant, he signed the name "Clyde R. Vest" as an indorsement on the checks left with Matthews, thereby obtaining the money, which he delivered to appellant. The checks were indorsed by placing on the back "Pay to the order of Clyde R. Vest," and Vest and appellant indorsed them. Immediately thereafter Matthews, the payee, indorsed them, and they were cashed.
Testifying in his own behalf, appellant admitted that he made the election bet, but denied that he had anything to do with any of the transactions testified to by Crabb with respect to getting Crabb to send telegrams and pose as Vest. He testified that he received a telegram to pay the money to Vest, and that thereafter a man by the name of Vest came to him with a letter of authority. He said that he indorsed the checks by reason of the letter of authority Vest presented.
We deem it unnecessary to detail the facts and circumstances corroborating the testimony of the accomplice. We are of the opinion that the evidence is sufficient to support the conviction.
Appellant presented his motion to quash the indictment. After verdict he filed his motion in arrest of judgment. In the first place it is averred that the count under which appellant was convicted contains inconsistent allegations, in that it is charged therein that appellant and A. A. Crabb made a false instrument in writing in contemplation of article 979, P. C., and also that they committed the offense of forgery by alteration as defined in article 984, P. C. In the second place, it is contended that there is repugnancy, in that it is alleged, first, that appellant and Crabb indorsed the name "Clyde R. Vest" on the back of a genuine instrument in writing, and that in the same count it is averred that said instrument in writing came into the possession of appellant and Crabb with the name "Clyde R. Vest" indorsed thereon.
Considering the first proposition, it is observed that it is alleged in the purport clause of the count under which appellant was convicted that appellant and Crabb "did then and there without lawful authority, and with intent to injure and defraud, wilfully and fraudulently make a false instrument in writing, purporting to be the act of another, to-wit; the act of `Clyde R. Vest.'" This allegation is followed by averments that appellant and Crabb indorsed the name of Clyde R. Vest next above the name of Ben C. Richards on the back of the genuine instrument in writing already in existence. The check upon which the indorsement is alleged to have been placed is then set forth. From this point, omitting the formal conclusion, the indictment reads as follows:
The gravamen of the offense was not the writing and making of the instrument described in the indictment, but the indorsement on the back thereof of the name "Clyde R. Vest." Miller v. State (Tex. Cr. App.) 34 S. W. 267. This is the question: Is the averment that appellant and Crabb made a false instrument in writing inconsistent with the allegation that they indorsed the name "Clyde R. Vest" on the back of an instrument in writing already in existence? It is not alleged that appellant and Crabb made the instrument described in the indictment. On the contrary, it is averred that such instrument was a genuine instrument in writing already in existence, and that the forgery was accomplished by indorsing the name "Clyde R. Vest" on the back thereof. The exact manner in which the forgery was accomplished is set out, making it plain that the action of indorsing the name "Clyde R. Vest" on the instrument described in the indictment was charged to constitute the forgery. The allegations are not deemed inconsistent; it being apparent from the face of the indictment that the averment that a "false instrument in writing was made" refers to the indorsement on the back of the instrument and not to the instrument itself. See Miller v. State, supra; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680.
Touching the second question, it is alleged in the indictment that the genuine instrument in writing therein described came into the possession of appellant and Crabb "and had written on the back thereof the following:
"Pay to the order of Clyde R. Vest
"O. L. Matthews
"Clyde R. Vest
"Ben C. Richards."
Appellant contends that the foregoing averment means that the name of Vest was already indorsed on the instrument when it came into the possession of Crabb and appellant, and that therefore the allegation in another part of the indictment to the effect that appellant and Crabb indorsed said name on the instrument directly contradicts the averment mentioned. It is not clear that the averment necessarily means that the indorsements were on the check when it came into the possession of appellant and Crabb. Be that as it may, we think that it is ascertainable from the face of the indictment that appellant and Crabb were charged with indorsing the name "Clyde R. Vest" on the instrument in question. Touching the doctrine of repugnancy, we quote from Branch's Annotated Penal Code of Texas, § 505, as follows: "If any count in an indictment contains inconsistent allegations, both of which cannot be true, and there is no means of ascertaining from the face of the indictment which is meant, the indictment is bad for repugnancy."
The text is supported by many authorities; among them being Edgerton v. State (Tex. Cr. App.) 70 S. W. 90; Hickman v. State, 44 Tex. Cr. R. 533, 72 S. W. 587.
In his charge, the court gave the definition of forgery found in article 979, P. C. Following this definition, all the constituent elements of the crime of forgery were submitted. In applying the law to the facts, the charge plainly submitted to the jury the constituent elements of forgery by alteration. Appellant objected to the charge on the ground that the court generally defined forgery without defining the offense of forgery by alteration as found in article 984, P. C. It is true that article 984, supra, was not copied in the charge. The constituent elements of the offense are embodied therein. The jury could not, in our opinion, have been misled. We deem the charge sufficient. Adkins v. State, 41 Tex. Cr. R. 577, 56 S. W. 63. Under the provisions of article 666, C. C. P., we are not permitted to order reversals for an error in the charge, unless such error was calculated to injure the rights of the appellant.
Appellant excepted to the charge of the court on accomplice testimony on the ground...
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Carter v. State, 19131.
...v. State, 14 Tex. App. 156, and subsequently followed in the case of Tracy v. State, 49 Tex.Cr.R. 37, 90 S.W. 308, and Richards v. State, 116 Tex.Cr.R. 100, 29 S.W.2d 367. Bishop on Criminal Law, vol. 2, § 533, lays down the following rule: "The false writing must be such as, if true, would......
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Ames v. State
...apparent from the face of the indictment that the allegation refers to the endorsement and not the instrument itself. Richards v. State, 116 Tex.Cr.R. 100, 29 S.W.2d 367. Although the instant indictment identifies 'the act of another to-wit, the act of endorsement,' the indictment continues......