Brewer v. State

Counsel

C.J. Davis and Walter E. Latimer, for appellant. — A dead man's name, under the laws of the State of Texas, can not be forged. C.F. Hathaway died about two months prior to the date of the alleged forgery. Willson's Crim. Stats., arts. 431, 433, 436, 437; 8 Am. and Eng. Encycl. of Law, 466 (note, forging name of deceased person); Anderson v. The State, 20 Texas Cr. App., 596; Rollins v. The State, 22 Texas Cr. App., 550; 2 Bish. Crim. Law, sec. 543. The offense charged in the bill of indictment is defined in articles 431, 433, 436, 437 of the Penal Code. The indictment sets up C.F. Hathaway, a natural person, whose name was forged; hence the person on whom the "pecuniary obligation" (if the same were true) must have been created was C.F. Hathaway, a living person. On the other hand, if C.F. Hathaway was dead at the time of the alleged forgery (which is a fact), then the only person on whom a "pecuniary obligation" could have been placed by forgery, if the same were true, was the decedent's (C.F. Hathaway's) estate. In 8 American and English Encyclopedia of Law, 466 (note, forging name of deceased person), an authority uses the following language: "Persons are of two kinds, natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is only recognized to a limited extent in our law; examples are the estates of a bankrupt or deceased person." Article 436 of the Penal Code, defining "another," as used in article 431, Penal Code, uses the following language: "The instrument must purport to be the act of 'another,' and within the meaning of this word, as used in defining forgery, are included this State, the United States, or either of the States or Territories of the Union; all the several branches of government or either of them; all public and private bodies, politic and corporate; all courts; all officers, public or private, in their official capacity; all partnerships in professions or trades; and all other persons, whether real or fictitious, except the person engaged in the forgery." We notice there is no reference made to the person represented by the deceased person's estate. Again, in Anderson v. The State, 20 Texas Criminal Appeals, 596, the instrument there referred to reads as follows: "George Woods: Martin Basinger says let Wiley Anderson have $10 worth of goods, and he will stand for it." The court uses the following language: "To constitute forgery, the instrument must be such an one that, if it were true, would create, diminish, discharge, or defeat pecuniary obligation, or would transfer or in some manner affect property. The instrument must also purport to be the act of another, and the instrument must so allege and name the person whose act it purports to be. Now, if this instrument were true, would it create or increase any pecuniary obligation against Martin Basinger?" Again, in Rollins v. The State, 22 Texas Criminal Appeals, 550, on the point that the instrument Henry Brewer is charged with having forged could not be made good by averment, the court uses the following language: "If the written instrument be void or invalid on its face, and can not be made good by averment, the crime of forgery can not be predicated upon it." The court erred in admitting in evidence certain statements and confessions of defendant (appellant) whilst under arrest. Grosse v. The State, 11 Texas Cr. App., 373, 374; Nolen v. The State, 8 Texas Cr. App., 585. R.L. Henry, Assistant Attorney-General, for the State.