Sheffield v. State

• Decision Date: 24 April 1957
• Docket Number: No. 28776,28776
• Citation: 165 Tex.Crim. 354,307 S.W.2d 100
• Parties: B. R. SHEFFIELD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 100

307 S.W.2d 100

165 Tex.Crim. 354

B. R. SHEFFIELD, Appellant, v. The STATE of Texas, Appellee.

No. 28776.

Court of Criminal Appeals of Texas.

April 24, 1957.

Rehearing Denied June 19, 1957.

Second Motion for Rehearing Denied Nov. 6, 1957.

Looney, Clark & Moorhead, Everett L. Looney, R. Dean Moorhead, and Mary Joe Carroll, Austin, Benson & Howard, W. D. Benson, Jr. and Robert Howard, Lubbock, for appellant.

Les Proctor, Dist. Atty., Bob Smith, Asst. Dist. Atty., Austin, Travis Shelton, Dist. Atty., Myron Garner, Asst. Dist. Atty., Lubbock, Bill Allcorn, Dist. Atty., Brownwood, Will Wilson, Atty. Gen., of Texas, David S. McAngus, Asst. Dist. Atty., Austin, Robert O. Smith, Asst. Atty. Gen., and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted of passing and uttering a forged instrument in writing relating to and affecting title to land, and his punishment assessed at confinement in the penitentiary for ten years.

The prosecution and conviction is under Article 1008 of Title 14, Ch. 2, Vernon's Ann.P.C. Acts of 1876, Fifteenth Legislature, Page 59 et seq., which provides, in part, as follows:

'Every person who knowingly utters, publishes, passes, or uses, or who in any way aids, assists in or advises the uttering, publishing, passing or using as true and genuine any false, forged, altered, or counterfeited certificate * * * acknowledgment or proof for record or certificate of record belonging to or pertaining to any instrument or paper, or any evidence of any right, title or claim of any character whatsoever, or any instrument in writing, document, paper, memorandum or file, or any official or private seal, or any scroll, mark, date, or signature in any way relating to, or having any connection with land, or any interest in land in this State, with the intent mentioned in article 1006 of this chapter, or with any other fraudulent intent whatsoever, shall be deemed guilty and be punished in like manner as is provided in article 1006 of this chapter. * * *'

Article 1006, V.A.P.C. provides in part as follows:

'Every person who falsely makes, alters, forges * * * or causes or procures to be falsely made, altered, forged * * * any * * * acknowledgment * * * in relation to or affecting lands, or any interest in lands in this State, with the intent to make money or other valuable thing thereby * * * shall be deemed guilty of forgery and be punished by imprisonment in the State penitentiary at hard labor not less than five nor more than twenty years.'

Article 1007, V.A.P.C. provides in part:

'If any person authorized by law to take the proof of acknowledgment of any instrument, document or paper whatsoever, affecting or relating to the title of lands in this State, wilfully and falsely certify that such proof or acknowledgment was duly made, * * * he shall be deemed guilty of forgery and punished as provided in article 1006 of this chapter.'

We shall first consider appellant's contention that, the allegations of the indictment are insufficient to charge the offense of uttering and passing a forged instrument.

The second count of the indictment, under which appellant stands convicted, charged in part as follows:

'And the Grand Jurors aforesaid, upon their oaths aforesaid, in said Court, do further present that B. R. Sheffield on or about the 20th day of May, A.D. 1954, and before the presentment of this indictment, in the County of Travis and State of Texas, did then and there unlawfully and without lawful authority, and with the intent to make money and with the intent to defraud, knowingly utter, publish, pass and use as true and genuine to the Veterans' Land Board of the State of Texas, an agency of the State of Texas, a certain false and forged acknowledgment to a certain instrument in writing relating to and affecting title to land in the State of Texas, which said certain instrument in writing is referred to throughout the body of this indictment as 'certain instrument in writing' and which said 'certain instrument in writing' and said false and forged acknowledgment thereto are to the tenor following:

'Assignment

'State of Texas

'County of McCulloch

'I, Alfonso Gutierrez Mireles, the buyer of the above described tract, do solemnly swear that I desire to purchase the land for myself and that no other person or corporation is interested in the purchase thereof either directly or indirectly, and do hereby assign and transfer unto the Veterans's Land Board of Texas all of my right, title and interest in and to the above contract of sale and the tracts of land described therein subject to the terms and conditions herein stated and subject to acceptance by said Board's authorized representative.

'This 18 day of May, 1954.

'/s/ Alfonso G. Mireles

'Assignor (Veteran)

'State of Texas

'County of McCulloch

'Before me, the undersigned authority, on this day personally appeared Alfonso Gutierrez Mireles known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated.

'Sworn to and subscribed to before me on this 18 day of May, 1954.

'Given under my hand and seal of office, this the 18 day of May, 1954.

'Doris Sayles, Notary Public

'McCulloch County, Texas

'/s/ Doris Sayles

'Notary Public in and for McCulloch County, Texas

'LV4-43-1b'

The indictment then sets out according to its tenor the contract of sale referred to and mentioned in the 'assignment' and 'certain instrument in writing'.

Following the instrument the indictment alleges:

'* * * and the aforesaid false and forged acknowledgment to the said 'certain instrument in writing' purported to have been duly and lawfully made on the 18th day of May, A.D. 1954 by the aforesaid Alfonso Mireles before a Notary Public in and for McCullough County, Texas, to-wit: the aforesaid Doris Sayles, the said Doris Sayles being then and there a Notary Public in and for McCullough County, Texas, and as such Notary Public, being authorized by law to take the acknowledgment of any instrument, document or paper affecting or relating to the title of land in the State of Texas, when in truth and in fact the said acknowledgment to the said 'certain instrument in writing' was not duly and lawfully made by the said Alfonso Mireles before the said Notary Public Doris Sayles, (the said Doris Sayles as such Notary Public having wilfully, fraudulently and falsely certified that the said acknowledgment was duly and lawfully made before her by the said Alfonso Mireles), and the said B. R. Sheffield then and there, when he did utter, publish, pass and use as true and genuine to the aforesaid Veterans' Land Board as aforesaid, well knew that the said acknowledgment to the said to the said 'certain instrument in writing' was false and forged, as aforesaid and in manner aforesaid * * *.'

Appellant insists that the allegations of the indictment are insufficient to charge an offense because, first, it is not alleged that the instrument declared upon as the subject of forgery and uttering purported to be the act of another as required under the general forgery statute, Art. 979, V.A.P.C.; and second, that Articles 1007 and 1008, supra, when enacted did not create a new and different type of offense of forgery and therefore the allegations of the indictment under these statutes were insufficient to charge an offense.

Articles 1007 and 1008, supra, as enacted in 1876 and which have remained unchanged, were part of an act entitled an act 'to provide for the detection and conviction of all forgers of land titles'.

It was not until the passage of the act of 1876 that certificates of acknowledgment became the subject of forgery in this State. Rogers v. State, 8 Tex.App. 401 and Johnson v. State, 9 Tex.App. 249.

Appellant cites and relies upon the Rogers and Johnson cases, supra, decided after the passage of the Act of 1876, in support of his contention that the act did not create a new and different type of forgery from that then existing under the general forgery statute, Pasc.Dig. Art. 2093, now Art. 979, supra.

While the opinions in the two cases contain language which would support appellant's contention, we do not construe the decisions as so holding.

In the cases mentioned the offenses charged were the forgery and passing as true of certain forged certificates of acknowledgment purporting to be the act of another. The alleged act of forgery was not the making of a false acknowledgment by a person authorized to take the proof of acknowledgment and the court was not called upon to decide whether such an act constituted the offense of forgery under the Act of 1876.

We hold that under the provisions of Art. 1007, supra, the offense of forgery includes the wilful making of a false certificate of acknowledgment to any instrument affecting or relating to the title to lands by any person authorized by law to take the proof of acknowledgment of such instrument. We think that such was the intent of the legislature in passing the Act of 1876 and that the indictment charged the offense of uttering and passing such a forged instrument under Art. 1008, supra.

We are aware of no reason why the Legislature was lacking in power to create the new offense and denominate it forgery, and to provide a punishment for uttering or passing such forgery. The false certificate of acknowledgment requires no allegation that it purported to be the act of another.

Appellant next contends that there is a conflict as to the punishment provided in Article 1007, supra, and Article 360, V.A.P.C., and that because of such conflict neither is enforceable. Article 360 reads as follows:

'If any notary public or other officer authorized by law, shall give a false certificate for the purpose of authenticating any instrument of writing for registration, he shall be confined in the...