Scott v. State

• Decision Date: 21 December 1898
• Citation: 48 S.W. 523
• Parties: SCOTT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 523

48 S.W. 523

SCOTT v. STATE.

Court of Criminal Appeals of Texas.

December 21, 1898.

Appeal from district court, Bexar county; I. L. Martin, Judge.

James Scott was convicted of forgery, and he appeals. Reversed.

John R. Cushman and Camp & Camp, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The charging part of the indictment is as follows:

That James Scott, "without lawful authority, and with intent to injure and defraud, did willfully and fraudulently make a false instrument in writing, purporting to be the act of another, to wit, the act of J. H. Douglas, train master, which said false instrument is to the tenor following:

                                      3 M 4 A
                Galveston, Harrisburg & San Antonio Railway
                                     Co
                                      San Antonio 3/7/1898
                 Mrs. M. Clemens
                             Madame
                               This will be handed you by
                Mr. James Scott, who has been put on the Ex
                list as brakeman I will see you secured
                                      J. H. Douglas
                                             Train Master
                

"The above instrument of writing, signed, as aforesaid, by J. H. Douglas, train master, did create a pecuniary obligation, in this, to wit, Mrs. M. Clemens had rooms to rent for pay in the city of San Antonio, Bexar county, Tex., and the order to her as aforesaid authorized the said Mrs. M. Clemens to let James Scott have a room for sleeping purposes on credit, and that he, the said J. H. Douglas, train master, would pay for such room rent in case it was not paid by the said James Scott. By the figures `3/7/1898' is meant the 7th day of the month of March, 1898. By the words `Ex list as brakeman' is meant that the said James Scott has been employed by the Galveston, Harrisburg & San Antonio Railway Company as an employé who would be called in by the said Galveston, Harrisburg & San Antonio Railroad Company as a brakeman in the event of extra work being done by the said Galveston, Harrisburg & San Antonio Railroad Company, or to take the place of a regular employé of the said Galveston, Harrisburg & San Antonio Railroad Company. By the words `I will see you secured' is meant that the said J. H. Douglas, train master, would see that the said Mrs. M. Clemens was secured and paid for anything that the said James Scott would receive from her. By the word `Train Master' is meant a person who has charge of all trainmen in the transportation department of the Galveston, Harrisburg & San Antonio Railway Company. Against the peace and dignity of the state."

Appellant contends (1) that this is not such an instrument as on its face is the subject of forgery; and (2) that the explanatory averments do not make it such an instrument. The rule on this subject is as follows: Any written instrument which, if genuine, would be valid for the purpose intended, and which would, if true, create, increase, discharge, or defeat a pecuniary obligation, or would transfer or in some manner affect property, can be made the basis of indictment for forgery. If the instrument is absolutely void upon its face, it cannot be made the subject of forgery; and if the legality be doubtful, and by proper allegations its legality is capable of being shown to the court, it is the subject of forgery. See article 537, White's Ann. Pen. Code, § 892, and authorities there cited. The pleader concedes here that the instrument on its face, without explanatory averments, would not appear to be the subject of forgery, but by explanatory averments it is the subject of forgery; and he proceeds to set out these explanatory averments. He shows therein that the Mrs. M. Clemens named had rooms to rent for pay in the city of San Antonio, and that the instrument purported to be an order from J. H. Douglas, train master, to let Mr. James Scott, who was an extra brakeman of the Galveston, Harrisburg & San Antonio Railway Company, have a room, and that he would see her (Mrs. Clemens) secured; that is, paid for said room. This was proper practice. See Daud v. State, 34 Tex Cr. R. 460, 31 S. W. 376; Cagle v. State (Tex. Cr. App.) 44 S. W. 1097.

Appellant contends that a suit for room rent could not be maintained by Mrs. Clemens against J. H. Douglas for the rent of said room, if said instrument were genuine. This is a good test. But we cannot agree to the contention of appellant in regard to this...