Roberts v. State

• Decision Date: 13 February 1929
• Docket Number: (No. 10639.)
• Citation: 13 S.W.2d 862
• Parties: ROBERTS v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 862

ROBERTS v. STATE.

(No. 10639.)

Court of Criminal Appeals of Texas.

February 13, 1929.

Commissioners' Decision.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

C. C. Roberts was convicted of the unlawful possession of a forged instrument with intent to pass the same as true, and he appeals. Affirmed.

Culwell & Culwell, of Amarillo, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, the unlawful possession of a forged instrument with the intent to pass the same as true; penalty, three years in the penitentiary.

No statement of facts or bills of exception appear in the record. It is convincingly argued in a brief on file that the indictment exhibited in the transcript is insufficient to charge an offense. The prosecution was under article 998, P. C. (1925), which reads as follows:

"If any person shall knowingly have in his possession any instrument of writing, the making of which is by law an offense, with intent to use or pass the same as true, he shall be confined in the penitentiary not less than two nor more than five years."

The indictment charges the possession of a forged deed, which is set out by its tenor, and shows the name of the grantee in said deed to be entirely omitted throughout. Nor does the indictment contain averments which might give vitality to such an instrument. It may be admitted, we think, that such a deed is insufficient to convey a legal title upon its face. There may, however, exist extrinsic facts which, when proven, vitalize the instrument as a conveyance. 18 C. J. p. 176. It may further be conceded, we think, that an indictment under article 979, P. C., which describes a deed as above without further explanatory averments would be insufficient. King v. State, 42 Tex. Cr. R. 113, 57 S. W. 840, 96 Am. St. Rep. 792. This seems necessarily true from the language of article 979, defining forgery, and which reads as follows:

"He is guilty of forgery who without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever."

All of appellant's argument has for its basis the hypothesis that article 979 controls the instant case and is the only article defining forgery. If his premise were true, his conclusion, we think, might be conceded as correct. However, forgery has another definition which pointedly applies to the character of instrument set out in the indictment under discussion. This definition is embraced in article 1006, P. C. (1925), and has been set into the chapter relating to the forgery of land titles. The substance of this, in so far as it affects the question here discussed, denounces as an offense the forgery of any deed with an intent to make money or other valuable thing thereby or with any fraudulent intent whatever. Article 1010 of the Penal Code, which follows the last above article and is explanatory thereof, provides, among other things, that, in...