Rollins v. State

• Decision Date: 08 December 1886
• Parties: ROLLINS v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 759

ROLLINS v. STATE.¹

Court of Appeals of Texas.

December 8, 1886.

Appeal from district court, Collin county.

The conviction was for forgery, and the penalty assessed was a term of two years in the penitentiary. J. S. B. Appollas, the senior member of the firm of Appollas & Halsal, merchants at Weston, Collin county, Texas, testified, for the state, that the defendant presented the order described in the indictment, and asked for goods on the same. Explaining the said order to witness, he said that the order called for four dollars in goods, and that the same was written by Mr. Joel Eller in person, in his presence and view. He said that he could not explain why Mr. Eller placed the dollar mark between the two noughts and the figure four. Upon the faith of the order and the statements of defendant, witness delivered to him four dollars worth of goods. On that same evening Mr. Joel Eller came to the store, and pronounced the order a forgery. Joel Eller testified for the state that the order in evidence, purporting to have been executed by him, was a forgery. He never executed the said order.

Johnson & Jenkins, for the appellant. Asst. Atty. Gen. Burts, for the State.

HURT, J.

The appellant was convicted for forging the following order, addressed to Appollas & Halsal, and purporting to have been drawn by Joel Eller.

                                                                      "JULY 3, 1885
                "Apolas & Halsal: Please let Mr. G. B. Rollins Have 4$00d. in goods
                and oblige. Charge to me.                                     JOEL E3LER."
                

Appellant relies upon three propositions for a reversal of the judgment: (1) The indictment should have been quashed, because it did not set out an instrument upon which forgery could be assigned. (2) The court erred in permitting a witness to explain or construe the instrument alleged to have been forged; that the instrument, as it was written, and without explanation or construction, must be such as would, if true and genuine, have created, increased, or diminished some pecuniary obligation of Joel Eller; that a witness should not be permitted to come into court and translate marks by stating what appellant said they meant; if so, appellant would be tried and convicted of forgery for what he said certain marks meant, and not on the written instrument. (3) A new trial should have been granted because the indictment alleged that the order was forged on Joel Eller, and the instrument bears a different signature.

We are impressed with the belief that a correct solution of the first proposition will dispose of the necessity of considering the others. We have copied above the original instrument, and the question presented is, can forgery be predicated or assigned upon said instrument? We will state what we understand to be the rules relative to this question. (1) "When the law to which an instrument is subject makes it absolutely and everywhere inoperative without certain formalities, then, falsely to make it without such formalities is not forgery. Thus, if certain witnesses are necessary to make a deed or will, falsely making a deed or will without such witnesses is not forgery." Whart. Crim. Law, § 697. "But to further illustrate, if the law forbids the circulation of notes below a certain denomination, this does not release a person from forgery. For the banker may be made liable on such notes, the prohibition going only to a circulation, and there is also a possibility of...