Thulemeyer v. State
| Decision Date | 24 November 1897 |
| Parties | THULEMEYER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Bexar county; Robert B. Green, Judge.
W. L. Thulemeyer was convicted of forgery, and appeals. Reversed.
Arthur W. Seeligson and J. H. McLeary, for appellant. Mann Trice, for the State.
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.
The first question presented is as to the validity of the indictment; that is, whether there is repugnance or variance between the purport and tenor clauses thereof. The charging part of said indictment is as follows: That W. L. Thulemeyer "did then and there, 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 Wm. M. Cooke, Jr., by then and there indorsing on the back of a genuine instrument in writing, to the tenor following:
—"the names `Wm. Cook, pr. Wm. M. Cook, Jr., W. L. Thulemeyer,' which said indorsements made by the said W. L. Thulemeyer, as aforesaid, would, if the same had been true and genuine, have transferred said genuine instrument in writing."
Said indictment distinctly charges that the forgery consists in the false indorsement on the back of said instrument purporting to be the act of William M. Cook, Jr. In the tenor clause, in setting out the indorsement on the back of said instrument, the pleader sets out as follows: "Wm. Cook, pr. Wm. M. Cook, Jr., W. L. Thulemeyer." The contention here is that in the purport clause the pleader should have set out all the names constituting the indorsement, in order that there should be an accurate correspondence between the purport and tenor clauses of the indictment. In accordance with our decisions upon this question, the point seems to be well taken. See Roberts v. State, 2 Tex. App. 4; English v. State, 30 Tex. App. 470, 18 S. W. 94; Campbell v. State (Tex. Cr. App.) 32 S. W. 899; Fite v. State (Tex. Cr. App.) 34 S. W. 922; Stephens v. State (Tex. Cr. App.) 37 S. W. 425; Gibbon v. State, Id. 861; 2 Bish. New Cr. Proc. § 416; Cross v. People, 47 Ill. 152; State v. Horan, 64 N. H. 548, 15 Atl. 20; 2 Shars. & B. Lead. Cr. Cas. p. 101, and note; 9 Enc. Pl. & Prac. p. 575, and notes. It will be observed that the allegation in the purport clause of the indictment is "that the indorsement purported to be executed by Wm. M. Cook, Jr." If we should eliminate...
To continue reading
Request your trial
-
Tracy v. State
...App.) 38 S. W. 167; Booth v. State (Tex. Cr. App.) 38 S. W. 196; Crayton v. State, 73 S. W. 1046, 7 Tex. Ct. Rep. 973; Thulemeyer v. State (Tex. Cr. App.) 43 S. W. 83. In Millsaps' Case, supra, it is said that the tenor clause sets out an instrument signed by C. H. Storey, secretary, and Ed......
-
The State v. Harroun
... ... sustained. State v. Fay, 65 Mo. 490; State v ... Chinn, 142 Mo. 507; Polk v. State, 51 S.W. 909; ... Bynum v. State, 17 Oh. St. 143; Carberry v ... State, 11 Oh. St. 414; Joiner v. State, 80 S.W ... 531; Mayer v. State, 85 S.W. 802; Thulemeyer v ... State, 43 S.W. 83. (a) There is nothing upon the face of ... the bill of lading to show that said Adams, whose name is ... signed thereto, was acting by said W. A. Mueller, as alleged ... in the indictment. The letter "M" in and of itself ... is not sufficient for that purpose. It might ... ...
-
Simms v. State, 13775.
...the indictment. Campbell v. State, 35 Tex. Cr. R. 182, 32 S. W. 899; Fite v. State, 36 Tex. Cr. R. 4, 34 S. W. 922; Thulemeyer v. State, 38 Tex. Cr. R. 349, 43 S. W. 83, 84. On authority of these and many other cases cited in section 1401, Branch's Annotated P. C., it is said: "If the purpo......
-
Mahon v. State
...in the charging or purport clause and the tenor clause thereof. In support of appellant's contention he cites us to Thulemeyer v. State (Tex. Cr. App.) 43 S. W. 83. This case is not in point. In that case there was a variance. The persons were not the same. But in this case they are. The on......