Townser v. State

• Decision Date: 02 February 1916
• Docket Number: (No. 3939.)
• Citation: 182 S.W. 1104
• Parties: TOWNSER v. STATE.
• Court: Texas Court of Criminal Appeals

182 S.W. 1104

TOWNSER v. STATE.

(No. 3939.)

Court of Criminal Appeals of Texas.

February 2, 1916.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Hattie Townser was convicted, and appeals. Affirmed.

J. W. Baker, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of forgery, and assessed the lowest punishment.

The indictment, after the preliminary necessary allegations, alleged that appellant on or about April 29, 1915, in said county —

"did then and there, without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing, purporting to be the act of another, to wit, purporting to be the act of Eliza Matthews, which said false instrument is to the tenor as follows: `Mr. Fout let this girl have 4 yards of Pink Sateen and 2½ yard of Pink Valing her name is Veola Rhodes. Charge it to Eliza Matthews.' On the back of said instrument were the following words: `Tim Rhodes Da' In the above instrument the words `Mr. Fout' were intended to mean, and did mean, W. C. Fouts, who is a salesman at the store of Tucker-Hayter & Company, Nacogdoches, Texas. In the above set forth instrument the name `Eliza Matthews' was intended for, and did mean, Eliza Matthews."

This indictment is in strict accordance with the form therefor laid down by Judge White in his Ann. C. C. P. § 882, and also with Judge Willson's form in his Criminal Forms (4th Ed.) No. 410, p. 215, and is clearly sufficient.

Appellant attacks by a motion in arrest of judgment said indictment on several grounds; one, because it did not allege that said instrument would have created, diminished, discharged, or defeated any pecuniary obligation or in any way affected any property belonging to the purported maker, Eliza Matthews, if same had been true. In this character of instrument, such allegation is unnecessary and has been held to be so by many decisions of this court. Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171, and authorities therein cited; Horton v. State, 32 Tex. 80; Labbaite v. State, 6 Tex. App. 257; Morris v. State, 17 Tex. App. 660; Dooley v. State, 21 Tex. App. 549, 2 S. W. 884; articles 454 and 807, C. C. P.

The instrument clearly, on its face, was neither vague nor uncertain, and especially when taken in connection with the explanatory averments, and showed clearly that the order to furnish the goods called for was to Mr. W. C. Fouts, a salesman at the store of Tucker-Hayter & Co., which was all that was necessary in that regard; nor was it necessary for the indictment to allege that said Fouts himself had goods for sale or that he was empowered to furnish said goods from the stock of Tucker-Hayter & Co. Keeler v. State, 15 Tex. App. 111; Spicer v. State, 52 Tex. Cr. R. 177, 105 S. W. 813; Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; Rubio v. State, 50 Tex. Cr. R. 177, 95 S. W. 120. In order to constitute forgery of an instrument such as in this instance, it is not necessary that the party to whom the order is directed shall accept it or comply with it or be able to do so. To constitute forgery it is not necessary that it be successful to the extent of having procured the goods thereby ordered. Reeseman v. State, 59 Tex. Cr. R. 434, 128 S. W. 1126; Rubio v. State, supra.

Neither was it necessary for the indictment to allege whether Tucker-Hayter & Co. was a firm, partnership, or corporation. It was not their names which were alleged to be forged. Lamb-Campbell v. State, 72 Tex. Cr. R. 628, 162 S. W. 879; Lucas v. State, 39 Tex. Cr. R. 48, 44 S. W. 825; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Reeseman v. State, supra. As stated above, the said indictment with the explanatory averments made is clearly sufficient under the statute and the authorities.

Before the trial began, appellant's grandmother made for her, and she filed, an affidavit alleging that she was a female under 18 years of...