Watson v. State

• Decision Date: 28 November 1917
• Docket Number: (No. 4621.)
• Citation: 199 S.W. 1098
• Parties: WATSON v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W. 1098

WATSON v. STATE.

(No. 4621.)

Court of Criminal Appeals of Texas.

November 28, 1917.

Rehearing Denied January 16, 1918.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

J. E. Watson was convicted of forgery, and he appeals. Affirmed.

Boyd & Bell and Geppert & Wroe, all of Teague, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of forgery, his punishment being assessed at two years' confinement in the penitentiary.

Appellant assigns what he denominates "fundamental error" based on the proposition that the indictment shows on its face the forged instrument is payable to the Farmers' & Merchants' State Bank of Teague, Tex., but it fails to allege that the note was delivered to that bank. This proposition is without merit. The name of R. L. King is the name forged to the note, which was payable to the Farmers' & Merchants' State Bank of Teague, Tex. The delivery of this note to that bank was not necessary to constitute forgery. It is not necessary to perpetrate the fraud in order to constitute forgery. If appellant forged the note with intent to defraud, the offense was complete.

Another "fundamental" proposition asserted by appellant is that the note, being set out by its tenor, should have also alleged that bank was a partnership, joint-stock company, or a corporation; the contention being that extrinsic averments must be alleged where it appears that the forged instrument is not made payable to an individual. We do not understand such to be the law applicable to this character of forgery. The rule is it is not necessary in instruments of this character to charge that the bank was incorporated. The cases will be found collated in Mr. Branch's Ann. P. C. at page 853. The bank is the payee, not the payer. It is not necessary to discuss what might be involved if the name of the bank had been forged. King's name was forged, and the bank made the payee. See 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; Whitaker v. State, 66 Tex. Cr. R. 541, 147 S. W. 599; Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171. Mr. Branch, in his Annotated P. C., thus states the rule in a very condensed and accurate form, as shown by the opinions of this court cited in support of this proposition:

"When the alleged forged instrument is an ordinary bank check, draft, promissory note, or other ordinary commercial instrument importing a pecuniary obligation on its face, it is not necessary to allege that the payee is a firm, partnership, or corporation."

He also states this further rule which indirectly may be applicable:

"Where the check or draft alleged to be forged is drawn on a bank, it is not necessary to allege that the bank was incorporated or unincorporated, the bank not being the injured party"— citing quite a number of authorities.

It may also be stated that, where the forged instrument is not an ordinary commercial instrument, and the name purporting to be signed thereto is not applicable to a private person, there should be an extrinsic averment showing whether it was a corporation, joint-stock company, or a partnership. This was held in Lynch v. State, 41 Tex. Cr. R. 209, 53 S. W. 693. It is again asserted that, if the alleged forged instrument is an ordinary commercial instrument importing a pecuniary obligation on its face and is signed by a name applicable to a firm, it need only be set out by its tenor, and in such case it is not necessary to allege the names of the individual members or to allege that their names were unknown. Many cases are cited by Mr. Branch in support of this proposition.

It seems to be the settled law that in forgery the forged instrument must be such that, if true, it would create, increase, diminish, discharge, or defeat any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever, and it must appear that it is legally of such character, either from the face of the instrument itself, or, if that alone does not show it, then additional averments of such extrinsic facts must be alleged as to charge a forgery. Under none of these authorities can it be held to be the law that extrinsic averments would be necessary under a forged instrument like the one set out in this record.

Another contention of appellant is that the court erred in not permitting the jurors to take the alleged forged instrument with them into the jury room, it being a written instrument introduced in evidence before the jury. The bill recites that when the jury retired defendant requested the court to permit the jury to take with them in the jury room the note alleged to have been forged by defendant. This was refused by the court. The trial judge explains this bill as follows:

"The note in question had been passed around and carefully examined by the several members of the jury. None of them requested or intimated to the court that they desired further examination. Fearing that same might become lost, and being an important document designed for use by the district attorney in other pending cases, the court deemed it advisable to not send same to the jury room, unless called for by the jury."

This ruling of the court is not erroneous. See Wragg v. State, 65 Tex. Cr. R. 136, 145 S. W. 342; Schultz v. State, 15 Tex. App. 258, 49 Am. Rep. 194. Article 751 of the Revised Code of Criminal Procedure provides that the jury may take with them on retiring to consider their verdict all the original papers in the cause and any papers used as evidence. This statute has been, at least as far back as Schultz v. State, supra, held to be permissible, and not mandatory and it is not error not to send the papers out unless called for by the jury. The cases above cited support this proposition.

In the motion for new trial it is alleged, first, that one of the jurors was not a householder or freeholder, and therefore should not have sat on the jury. The idea conveyed is that appellant did not know at the time he accepted this juror that he came within that cause for challenge. That of itself will not require the granting of a motion for new trial. Leeper et al. v. State, 29 Tex. App. 63, 14 S. W. 398; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Williamson v. State, 36 Tex. Cr. R. 225, 36 S. W. 444. This rule has also been laid down by the Supreme Court. Schuster v. La Londe, 57 Tex. 28.

With reference to this same affidavit another ground of the motion for new trial alleges that the juror was prejudiced against him and had so expressed himself prior to being taken upon the jury. The motion for new trial contains the following:

That the said Baggett was not an impartial juror; that he was not acceptable to defendant because he was biased...