Court of Criminal Appeals of Texas, 1893

Simms v. State

Court of Criminal Appeals of Texas · Decided June 17, 1893 · No. 319. · Davidson

22 S.W. 876; 32 Tex. Crim. 277; 1893 Tex. Crim. App. LEXIS 266 (South Western Reporter)

Counsel

A.J. Bell, Dean Dean, Kittrell Allen, and William Watson, for appellant. — 1. The court erred in not granting a new trial to the defendant because of the failure of the proof to show that there was in existence any note that would have been affected by said instrument, and because the proof showed that there was no such note; hence there could have been no forgery. 2. An instrument to be the basis of a prosecution by the passing as true a forged instrument, must be such an instrument as could be made the basis of a prosecution for forgery; and an instrument to be the basis of a prosecution for forgery, the capability of being the subject of forgery must be such an instrument that if it had been true would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred or in any manner have affected the property. 3. The instrument alleged to have been passed purported to have been a transfer of a note due from Lacy to Russell, and the proof not only failed to show that there was any such note in existence, but showed, on the contrary, affirmatively, that there was no such note; hence there was no forged instrument, and the appellant could not have been guilty of passing as true such an instrument. Penal Code, art. 431; Anderson v. The State, 20 Texas Cr. App., 598; Howell v. The State, 37 Tex. 591 [ 37 Tex. 591 ]. R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

DAVIDSON, Judge.

This conviction was for passing a forged instrument.

1. Two bills of exception recite that the State offered to prove certain facts. Objections interposed by defendant were overruled. The bills do not state, nor is it shown by them, the offered evidence was admitted to go to the jury. For this omission they are fatally defective. We can not look to the statement of facts to ascertain or determine this fact. Burke v. The State, 25 Texas Cr. App., 172; Jacobs v. The State, 28 Texas Cr. App., 79; Jackson v. The State, 28 Texas Cr. App., 143.

2. The evidence does not support the allegations of the indictment. The instrument declared on reads as follows, to-wit: “ October 10, 1890. This is to certify, that I have sold the note I hold against H. A. Lacy to H. A. Simms. W. D. Russell.” It is shown by the testimony of Russell and Lacy that Lacy did not owe Russell a note of any description. This constitutes a, fatal variance.

*279 3. We are further of opinion, that the indictment should have alleged .directly, and not by way of inference, that II. A. Lacy had executed and delivered to W. D. Russell a note, setting it out, or was indebted to him on an account, as the case may be, and then assign the forgery upon the transfer of the instrument set out in the indictment and alleged to have been forged. Looking upon this indictment, it does not appear therefrom that the instrument upon which forgery is assigned created, increased, diminished, discharged, or defeated any pecuniary obligation, etc. Under this state of case, the rules laid down in Hendricks v. The State apply, and must be observed. Hendricks v. The State, 26 Texas Cr. App., 176; Shannon v. The State (Ind. Sup.), 10 N. E. Rep., 87; Hobbs v. The State, 75 Ala., 1; 1 Whart. Crim. Law, 8 ed., sec. 740; 2 Bish. Crim. Law, 7 ed., sec. 545. The judgment is reversed, and the prosecution dismissed.

Reversed and dismissed.

Judges all present and concurring.

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