OPINION
DALLY, Commissioner.
This is an appeal from a conviction for forgery with the intent to defraud and harm another; the punishment enhanced under the provisions of V.T.C.A., Penal Code Section 12.42(a) is imprisonment for four years. We are presented with interesting and important questions concerning the forgery section of the New Penal Code.
The appellant asserts that V.T.C.A., Penal Code Section 32.21 is unconstitutional because it does not require that a person charged with passing a forged instrument have knowledge that it was forged. The appellant argues that the facts in this case illustrate his position. He says that since the check was passed without being endorsed the jury could have believed the appellant did not know the check was forged, but the jury could have believed that he intended to defraud and harm by passing the check unendorsed. Although we agree and find that Section 32.21 standing alone does not require knowledge that a writing passed is a forged writing, we do not find the section to be unconstitutional for this reason. However, the contention does raise issues that need careful consideration.
V.T.C.A., Penal Code Section 32.21 in pertinent part reads as follows:
“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
“(iii) to be a copy of an original when no such original existed;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing’ includes:
“(A) printing or any other method of recording information;
[773]*773“(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
“(C) symbols of value, right, privilege, or identification.
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”
This section unlike the former statutes (Articles 979 et seq. V.A.P.C.) would permit finding a person guilty of an offense for the issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a forged writing, even though that person had no knowledge that the writing was forged. The former statutes were held to provide that a person must know the instrument he passed was a forged instrument before he could be found guilty of passing it. E. g., Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Haney v. State, 438 S.W.2d 580 (Tex.Cr.App.1969).
For the offense of passing a forged instrument other modern penal codes require that there be knowledge that the instrument is a forgery. The American Law Institute’s Modern Penal Code, Section 224.1 reads:
“(1) Definition. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
“(a) alters any writing of another without his authority; or
“(b) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
“(c) utters any writing which he knows to be forged in a manner specified in paragraphs (a) or (b).” (Emphasis added.)
See also N.Y. Penal Law, Sections 170.05-170.30 (McKinney’s Consol.Laws, c. 40); Cal.Penal Code, Section 470 (West); 38 Ill. Ann.Stat., Section 17-3 (Smith-Hurd, Supp. 1974); 18 Pa.Stat.Ann., Section 4101.
In defining the culpable mental states “intentionally or with intent” and “knowingly or with knowledge,” V.T.C.A., Penal Code, Section 6.03 provides:
“(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
“(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”
When the Penal Code definition of the words “intentionally or with intent” and “knowingly or with knowledge” are considered it cannot be persuasively argued that the use of the words “intent to defraud or harm” used in Section 32.21(b) means that a defendant to be guilty of the offense must have “knowledge” that the writing he passes is a forged writing.
However, we must also consider V.T.C.A., Penal Code, Section 6.02 which provides:
“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
[774]*774“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”
Section 6.02 provides that even if the definition of an offense does not prescribe a culpable mental state a culpable mental state is required unless the definition of the offense plainly dispenses with a mental state. This section defines four culpable mental states.
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OPINION
DALLY, Commissioner.
This is an appeal from a conviction for forgery with the intent to defraud and harm another; the punishment enhanced under the provisions of V.T.C.A., Penal Code Section 12.42(a) is imprisonment for four years. We are presented with interesting and important questions concerning the forgery section of the New Penal Code.
The appellant asserts that V.T.C.A., Penal Code Section 32.21 is unconstitutional because it does not require that a person charged with passing a forged instrument have knowledge that it was forged. The appellant argues that the facts in this case illustrate his position. He says that since the check was passed without being endorsed the jury could have believed the appellant did not know the check was forged, but the jury could have believed that he intended to defraud and harm by passing the check unendorsed. Although we agree and find that Section 32.21 standing alone does not require knowledge that a writing passed is a forged writing, we do not find the section to be unconstitutional for this reason. However, the contention does raise issues that need careful consideration.
V.T.C.A., Penal Code Section 32.21 in pertinent part reads as follows:
“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
“(iii) to be a copy of an original when no such original existed;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing’ includes:
“(A) printing or any other method of recording information;
[773]*773“(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
“(C) symbols of value, right, privilege, or identification.
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”
This section unlike the former statutes (Articles 979 et seq. V.A.P.C.) would permit finding a person guilty of an offense for the issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a forged writing, even though that person had no knowledge that the writing was forged. The former statutes were held to provide that a person must know the instrument he passed was a forged instrument before he could be found guilty of passing it. E. g., Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Haney v. State, 438 S.W.2d 580 (Tex.Cr.App.1969).
For the offense of passing a forged instrument other modern penal codes require that there be knowledge that the instrument is a forgery. The American Law Institute’s Modern Penal Code, Section 224.1 reads:
“(1) Definition. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
“(a) alters any writing of another without his authority; or
“(b) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
“(c) utters any writing which he knows to be forged in a manner specified in paragraphs (a) or (b).” (Emphasis added.)
See also N.Y. Penal Law, Sections 170.05-170.30 (McKinney’s Consol.Laws, c. 40); Cal.Penal Code, Section 470 (West); 38 Ill. Ann.Stat., Section 17-3 (Smith-Hurd, Supp. 1974); 18 Pa.Stat.Ann., Section 4101.
In defining the culpable mental states “intentionally or with intent” and “knowingly or with knowledge,” V.T.C.A., Penal Code, Section 6.03 provides:
“(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
“(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”
When the Penal Code definition of the words “intentionally or with intent” and “knowingly or with knowledge” are considered it cannot be persuasively argued that the use of the words “intent to defraud or harm” used in Section 32.21(b) means that a defendant to be guilty of the offense must have “knowledge” that the writing he passes is a forged writing.
However, we must also consider V.T.C.A., Penal Code, Section 6.02 which provides:
“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
[774]*774“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”
Section 6.02 provides that even if the definition of an offense does not prescribe a culpable mental state a culpable mental state is required unless the definition of the offense plainly dispenses with a mental state. This section defines four culpable mental states. Two of these mental states, “with intent” and “with knowledge,” have application to the offense of issuing, transferring, registering the transfer of, passing, publishing or otherwise uttering a forged instrument. Unless we assume, and this we are unwilling to do, that a kind of strict liability was intended and that those who pass forged instruments are guilty of an offense even though they have no knowledge that the writing passed is forged, the passing of a forged writing requires two culpable mental states. The defendant to commit the offense of passing a forged writing must pass it with knowledge that it is forged as well as having an intent to defraud or harm. This is plainly required when Sections 6.02, 6.03, and 32.21 are construed together, as they must be.
When Section 32.21 is so construed a serious question is raised concerning the indictment under which this appellant stands convicted. This question, if not sufficiently raised by the appellant’s brief as required by Article 40.09, Section 9, Vernon’s Ann.C. C.P., must be reviewed in the interest of justice under the provisions of Article 40.09, Section 13, V.A.C.C.P.
An indictment that does not allege an offense is fundamentally defective, and a conviction under an indictment that does not allege an offense must be reversed because the conviction is void. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).
The pertinent part of the indictment in this case alleges that the appellant “ . on or about the 5th day of February, A.D., 1974, ... did then and there with the intent to defraud and harm, forge, by passing to Jerry Haile, a writing as follows: . ” and then a photographic copy of a check appears on the indictment.
This indictment clearly fails to allege that the appellant passed the check knowing that it was forged; it is fundamentally defective.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.