Tracy v. State
| Citation | 90 S.W. 308 |
| Parties | TRACY v. STATE. |
| Decision Date | 06 December 1905 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.
S. E. Tracy was convicted of forgery, and he appeals. Reversed.
Brockman & Kahn and E. T. Branch, for appellant. A. S. Fisher and Howard Martin, Asst. Atty. Gen., for the State.
The indictment contains six counts: The 1st, 3d, and 4th charge forgery, and the 2d, 5th, and 6th passing or uttering a forged instrument. The court submitted only forgery, and therefore the counts with reference to passing forged instruments will not be considered. Motion to quash was overruled. As the court only charged with reference to the counts where the forgery is predicated upon the act of James Charlton acting as president of the board of school trustees of the independent school district of the city of Houston, the third count will not be considered, because that charged the forgery purported to be the act of the board of school trustees of the independent school district of the city of Houston. Therefore, as the case is presented, all the counts in the indictment pass out by reason of the court having elected to submit the case to the jury upon that phase of the indictment which charged the act to be that of Charlton as president of the school trustees of the independent school district of the city of Houston. The court having elected for the state to submit the case upon this issue or purported act, all of the others pass out of the indictment, and cannot form the basis of further prosecution under this indictment.
The first count charged that the alleged forged instrument in writing purported to be the act of another, to wit, the act of James Charlton, as then and there the president of the board of school trustees of the independent school district of the city of Houston, which said false instrument is to the tenor following:
The fourth count in the purport clause is the same, and the tenor clause the same. The claim that there is a variance between the purport and tenor clauses is well taken. By the purport clause it is shown to be the act of James Charlton, president, etc. The instrument itself shows it to be the acts of James Charlton, president of the board of school trustees, and S. E. Tracy, secretary of the board. We deem it unnecessary to review the authorities or go into any lengthy discussion of the matter. The cases are numerous, and in point to the effect that this motion to quash is well taken. Millsaps v. State (Tex. Cr. App.) 43 S. W. 1015; Stephens v. State, 36 Tex. Cr. R. 386, 37 S. W. 425; Campbell v. State, 35 Tex. Cr. R. 182, 32 S. W. 899; Gibbons v. State, 36 Tex. Cr. R. 469, 37 S. W. 861; Stevens v. State (Tex. Cr. 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. Strauss, president. The indictment alleged that the forged instrument purported to be the act of the Waco Hardware Company, Waco, Tex. In the Stephens Case, 36 Tex. Cr. R. 386, 37 S. W. 425, the purport clause alleged the instrument to be the act of Green. The tenor showed it to be signed by Green and Stephens. Crayton's Case, supra, holds that, where the purport clause alleged the instrument as the act of Brack Hall, and the instrument was signed by Brack Hall and three other parties, the variance was fatal. Because of the variance between the purport and tenor clause, the indictment is held to be vicious.
The further objection is made that the act or the alleged forgery would constitute no offense against the laws of the state. We do not agree with this contention. The main proposition upon which appellant seems to base this contention is that, as presented, it could not form the basis of a civil proceeding, or the predicate of a judgment for recovery, because it was not shown or alleged that the proper action had been taken by the board of school trustees authorizing the issuance of the order, and that in order to constitute a genuine instrument, or one that would form the basis of a civil proceeding, it would have been necessary for such action on the part of the board. This may or may not be true. Under the authority of McDonald, School Trustees, v. Farmer (Tex. Civ. App.) 56 S. W. 555, this position would not be well taken, if the instrument bears prima facie evidence of correctness. But it does not follow in any event that because an instrument will not form the basis of a civil proceeding, or the predicate for a judgment in a civil action, therefore the instrument would not be the subject of forgery. It is too well settled for discussion that the forgery of a fictitious name will form the basis of a conviction for forgery, yet it might not form the basis of a civil judgment. If the instrument, by its tenor, is as the law books say, "a complete and valid instrument upon its face," then it is the subject of forgery. This was a completed instrument, so far as the president and secretary of the board of school trustees could make it, whether the board of trustees had ever taken proper action or not. The fact that the board of trustees had not done so could not affect the face of the instrument. Mr. Bishop says that "an instrument, to be the subject of forgery, must on the face of it be good and valid for the purpose for which it was created." 2 Bishop, Cr. Law, 506. Such we understand to be the well-settled law in Texas, where that question has been the subject of discussion. Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; King v. State, 27 Tex. App. 567, 11 S. W. 525, 11 Am. St. Rep. 203. It may be even said that it is not necessary that the check should have a completed legal efficacy. It would be sufficient if its legal efficacy be apparent, though not actual or...
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