Webb v. State

• Decision Date: 19 October 1898
• Citation: 47 S.W. 356
• Parties: WEBB v. STATE.
• Court: Texas Court of Criminal Appeals

Page 356

47 S.W. 356

WEBB v. STATE.

Court of Criminal Appeals of Texas.

October 19, 1898.

Appeal from district court, Erath county; J. S. Straughan, Judge.

J. N. Webb was convicted of forgery, and he appeals. Reversed.

McCain & Daniel, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of 2½ years; hence this appeal.

Appellant made a motion in arrest of judgment, which involves the validity of the indictment, which was overruled by the court, and he assigns the same as error. The charging part of the indictment is as follows: "That J. N. Webb * * * did then and there unlawfully and without lawful authority, and with the intent to injure and defraud, willfully and fraudulently make a false instrument in writing, which said instrument is substantially as follows: `$82.80/100. Dec. 29th, 1896. On May the 29th, 1897, for value received, we or either of us promise to pay to the Dublin National Bank the sum of eighty-two & 80/100 dollars, at Dublin, Texas, with ten per cent, per annum interest from maturity. [Signed] J. N. Webb, J. R. Rucker, S. E. Drake.' The said note cannot be described better, nor set out by its tenor, for the reason that the same has been taken up and paid off by the defendant, and is now in his possession, or is lost and destroyed, and cannot be had by the grand jurors aforesaid." Appellant alleges — First, that the indictment charges no offense, because it failed to allege that said forged instrument was the act of another or others, as required in article 530 of the Penal Code of 1895; and, second, that the indictment alleged that said forged instrument was payable to the order of the Dublin National Bank, of Dublin, Tex., and nowhere alleges that said Dublin National Bank is a co-partnership, joint-stock company, or incorporated company.

While the statute requires, before the offense of forgery can be committed, it must purport to be the act of another, it is not necessary, in charging forgery, to set out the purport of an instrument, or by whom it purported to be signed. It is simply sufficient to set forth the instrument by its tenor. It is not claimed that the name "J. N. Webb," the defendant, was forged to the instrument; but the forgery, as shown by the proof, consists in signing the names of J. R. Rucker and S. E. Drake to said instrument, following the name of Webb. We held that there was no necessity for the allegation that the instrument purported to be the act of another than the said J. N. Webb; that the signature to said instrument purported to be the act of another than the said Webb sufficiently appears by the allegation that the instrument bearing said signatures was forged by the said Webb,—not that he forged his own name thereto, but that he forged the names of one or both of the other parties thereto. See Thurmond v. State, 25 Tex. App. 366, 8 S. W. 473; Wilson v. People, 5 Parker, Cr. R. 178.

The other ground alleged in the motion in arrest of judgment is not well taken. It was not necessary here to allege the incorporation of the bank. It was not claimed that the bank executed or purported to execute the order. The instrument was merely drawn on a bank. See Brown v. State (Tex. Cr. App.) 43 S. W. 986; Lucas v. State (Tex. Cr. App.) 44 S. W. 825. This is not like the cases of White v. State, 24 Tex. App. 231, 5 S. W. 857, and Nasets v. State (Tex. Cr. App.) 32 S. W. 698.

Appellant, on the trial of the case, asked the court to give the following instruction to the jury, which the court refused, and he reserved his exception thereto, and assigns this action of the court as error: "You are charged that in this case the state has alleged that the instrument claimed to have been forged was signed, `J. N. Webb, S. E. Drake, J. R. Rucker,' and that, before you can find the defendant guilty, you must find from the evidence that the instrument was so signed. ...