Smith v. State

• Decision Date: 27 June 1917
• Docket Number: (No. 4550.)
• Citation: 197 S.W. 589
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

197 S.W. 589

SMITH v. STATE.

(No. 4550.)

Court of Criminal Appeals of Texas.

June 27, 1917.

Rehearing Denied October 10, 1917.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

W. M. Smith was convicted of forgery, and he appeals. Affirmed.

John A. Ballowe and A. S. Baskett, both of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

This is an appeal from a conviction for knowingly attempting to pass as true a forged note. The prosecution was under article 937, P. C., which is:

"If any person shall knowingly pass as true, or attempt to pass as true, any such forged instrument in writing as is mentioned and defined in the preceding articles of this chapter, he shall be punished by imprisonment in the penitentiary not less than two nor more than five years."

The indictment was in three counts. The conviction was under the second, which is as follows: That appellant on December 6, 1916, in Dallas county, Tex., "did willfully, knowingly, and fraudulently attempt to pass as true to one Joe Goldberg a false and forged instrument in writing, which had theretofore been made without lawful authority, and with intent to defraud." (Here follows a copy of the alleged forged note under an allegation of tenor; it is unnecessary to copy the note. The indictment then proceeds:) "And which said instrument in writing the said W. M. Smith then and there well knowing to be false and forged, he (the said W. M. Smith) did pass the same as true, with intent to injure and defraud," concluding with "against the peace and dignity of the state."

The court submitted to the jury solely the question of an attempt to pass the note upon Goldberg. He did not submit the actual passing of it on any one. Appellant made no motion to quash this count in the indictment. After the trial, and even after he had filed his motion for a new trial, he for the first time filed a motion in arrest of judgment, claiming that said count of the indictment was vague, indefinite, and uncertain, and the allegations repugnant in that said count, in the first part, averred that he did attempt to pass as true the said forged note to Goldberg, and in the concluding part of said count it charged that he did pass it as true.

The court's action in overruling his motion in arrest of judgment was correct, and presents no error for several reasons:

1. It will be noted that said article 937 prescribes two separate and distinct ways in which that law may be violated, and therein prescribes the same punishment for each. It does not prescribe two separate and distinct offenses in the sense that they both cannot be alleged in one count. It is unquestionably settled in this state that:

"Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count."

This is a quotation from Judge White's Ann. C. C. P. p. 297, where he cites the decisions of this court to that effect. He also lays down exactly the same proposition in section 383, p. 286, citing many decisions of this court. To exactly the same effect is the proposition laid down in 2 Vernon's Crim. Stats. p. 244, and section 508, 1 Branch's Ann. P. C., in both of which a large number of cases supporting the text are cited.

It might be contended that attempting to pass a forged instrument is a distinct offense from actually passing it, but even if that was conceded it would not make the count of the indictment herein invalid, because this court has many times and in many decisions distinctly held, as was held in Nicholas v. State, 23 Tex. App. 326, 5 S. W. 241:

"When offenses are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper"—citing State v. Randle, 41 Tex. 292; State v. Edmondson, 43 Tex. 162.

See, also, in point, Hickman v. State, 64 Tex. Cr. R. 162, 141 S. W. 973; Cabiness v. State, 66 Tex. Cr. R. 416, 146 S. W. 934; Green v. State, 66 Tex. Cr. R. 452, 147 S. W. 593.

The completed passing of a forged instrument necessarily implies an attempt to do so; hence on this point the indictment was not fatally defective.

2. There is another principle thoroughly established and applicable herein, and which is as laid down by Judge White as follows: Redundant allegations and those which are in no manner descriptive of the offense and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the defendant, and are no detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. This principle has been announced and applied all the time in this court down to this date. Mr. Branch...