Sales v. State, 66074

• Decision Date: 10 March 1982
• Docket Number: No. 3,No. 66074,66074,3
• Citation: 628 S.W.2d 796
• Parties: Dwight Leslie SALES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 796

628 S.W.2d 796

Dwight Leslie SALES, Appellant, v. The STATE of Texas, Appellee.

No. 66074.

Court of Criminal Appeals of Texas, Panel No. 3.

March 10, 1982.

E. Stanley Topek, Houston, court appointed on appeal only, for appellant.

John B. Holmes, Jr., Dist. Atty. and James C. Brough & Mike Aduddell, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, W. C. DAVIS and McCORMICK, JJ.

OPINION

McCORMICK, Judge.

Appellant was convicted of possessing a forged check with intent to utter. A Harris County jury assessed punishment at eight years in the Texas Department of Corrections.

Appellant contends that the evidence is insufficient to support the conviction because "there is no evidence that the act was the act of another who did not authorize the act."

A teller at the North Freeway Bank positively identified appellant as the man who passed her a certain check to cash. The check was on the account of Unlimited Art and appeared to have been made by Richard DeNeve, though the signature was not plainly legible. A Richard DeNeve testified at trial that he did not sign the check. It was made out to Dwight Sales and was for $1,100. The back of the check revealed that it had been endorsed by a Phyllis Dunn. It had then been endorsed by Dwight Sales. A Phyllis Dunn had an account at that bank and apparently that was the reason the check was cashed by the bank. Appellant gave the teller identification showing that he was Dwight Sales and the teller cashed the check. Nancy Rowland testified that she was the owner of Unlimited Art and that no one else had permission to sign or make any checks on the account of Unlimited Art. She did not sign or authorize the check in question and did not know and had not heard of a Richard DeNeve.

The State, apparently in order to prove intent, showed appellant had passed another forged check, Gordon v. State, 138 Tex.Cr.R. 637, 137 S.W.2d 1023 (1940).

Before the offense of forgery can be committed under the theory alleged, the forged instrument must purport to be the act of another who did not authorize the act. If the check in question purported to be the act of another (other than the person signing it) who had not authorized it, the evidence is sufficient. Because the signature was illegible, it cannot be said that the State proved that the signer did not sign his own name.

Only one person, Nancy Rowland, was authorized to sign the check that was the subject of this prosecution. Rowland testified that she did not sign the check and gave no one else authority to sign the check. Therefore, it can be argued that whoever signed the illegible signature as maker purported to be the person authorized to sign on the account of Unlimited Art. Under such a conception, the evidence showed that the check purported to be the act of another who did not authorize the act even if the signer signed his own name.

This view is bolstered by cases such as Gonzalez v. People, 149 Colo. 548, 369 P.2d 786 (1962). In that case, the defendant's friend obtained a check of a company with which he had no relationship and signed his own name as maker. The defendant then cashed the check. Interpreting a statute similar to that of the Texas forgery statute, the Colorado court held that a forgery had been shown.

Several Texas cases also tend to support this viewpoint. In Cobb v. State, 105 Tex.Cr.R. 81, 286 S.W. 1086 (1926), the check was signed "Liberty Cafe by Geo. Angelo." The proof showed that no George Angelo was authorized to sign the check. The defendant therefore claimed that the check was a nullity and could not be the subject of a forgery and that the State should have alleged that Geo. Angelo was a fictitious person. This Court upheld the conviction saying: "The manifest purpose of the check * * * was to create the impression that George Angelo had the right to bind the Liberty Cafe in the execution of the check." But that case did not deal with the contention that there had been no evidence that the signature by George Angelo purported to be no one else's signature than a George Angelo. See also, Chowning v. State, 137 Tex.Cr.R. 4, 127 S.W.2d 461 (1939).

The problem with the above analysis appears to be prior Texas caselaw that holds that a false claim of agency will not constitute forgery. In Simms v. State, 116 Tex.Cr.R. 97, 32 S.W.2d 852 (1930), George Simms signed a check as maker "R. C. Simms by George Simms." The Court said:

"... (W)hen one signs the name of another to a document expressly stating in the writing that same is so signed by himself as agent, this purports to be the act of the agent and in no wise the act of his principal. We are at a loss to see how the question of determining the validity of the document by proof aliunde that the agent was authorized to sign the name of his principal, in any wise prevents or hinders the act done, viz. the signing of the name of the principal by his agent from appearing to be the physical act alone of the agent. A document so signed in no sense purports to have been signed by the principal but is in fact signed only by the agent and necessarily purports to have been signed by him."

The case goes on to say that the defendant was possibly guilty of swindling but could not be guilty of forgery. See also, Nobles v. Marcus, 533 S.W.2d 923 (Tex.1976); Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); and People v. Levitan, 49 N.Y.2d 87, 424 N.Y.S.2d 179, 399 N.E.2d 1199 (1980). The civil case of Gulf v. Cantrell, 387 S.W.2d 416 (Tex.Civ.App., Beaumont, 1965, dismissed), is also of interest. There, interpreting the definition of forgery, the court held that signing ones own name to a credit card receipt when using another person's credit card could not be forgery.

Therefore, it may be argued that the proof in this case showed simply a check, signed by an unknown person, who claimed to have authority to sign the check for Unlimited Art when he in fact had no such authority. For all that is known, the person signing the check may have signed his real name.

A rationale behind the rule that a false statement of agency is not a forgery can be found in Perkins on Criminal Law, Chapter 4, Section 8, page 346:

"... An additional point is to be noted in cases in which one fraudulently purports to act as agent for another. If he has no power or authority to act in this capacity, the other will not be bound; but if the signature contains both names and shows that the signer was purporting to act as agent for the other, the writing is not a forgery. Strictly speaking there is a false writing in such a case because it purports to be the instrument of the principal whereas it is not so in fact; but since any reliance will be upon the implied warrant of authority clearly manifested by the writing itself, it is felt not to come within the type of wrong which forgery is designed to punish. This is the theory back of the holding that signing a note in the name of a fictitious firm, purportedly made up of the writer and another person, is not forgery though done with intent to defraud. The writing binds the man who wrote it and is false merely in the implied warrant of authority to bind the other."

In discussing forgery, the Ninth Circuit Court of Appeals recently made the following observations:

"The distinction is as between a document signed by a 3rd person using the signature of another (a forgery) and a document signed by an authorized person but containing a promise known to be false that does not bear on the authenticity of the instrument (not a forgery). We acknowledge that the controlling categories between acts that are...