Kennedy v. State

26 S.W. 78, 33 Tex. Crim. 183, 1894 Tex. Crim. App. LEXIS 76

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 1894
• Docket: No. 437.
• Status: Published

Opinion

DAVIDSON, Judge.

Appellant was charged with, and convicted of, forging the following instrument:

“$45.00. “Harrison County, Texas, Jan. 29, 1892.

“Pay to L. C. Kennedy, or order, tbe sum of forty-five ($45.00) dollars out of tbe public school fund apportioned to tbe-School Dist. No. 13, for services as teacher in tbe public free schools in said community for tbe month ending tbe 29th day of January, 1892.

“To County Treasurer,-County, Texas.

“(1) J. C. Harcrow,

“(2) J. W. Gorman,

“(3)-■-,

“Trustees of School District No. 13, in Harrison Co., Texas.”

Motion to quash was made because tbe indictment charges no offense. Tbe particular defect or defects are not sought to be pointed out. We are informed, through brief of counsel for tbe State, that tbe contention is that tbe voucher not being directed to any person, is not tbe subject of forgery. Whether being generally addressed to tbe “Treasurer” is sufficient or not, we take it, is not of great importance. The law points out the treasurer as the party who shall pay school vouchers such as the one in question. Whether named or not, the treasurer is the party who is legally required to pay the voucher. It does not affect the validity of the instrument that his name be omitted. Instruments of writing may create pecuniary obligations, affect property in some manner, and be the subject of forgery, without being directed or addressed to any particular person. This question was fully investigated in the unreported case of Dixon v. The State (decided by the Court of Appeals of Texas at its Austin Term, 1889, opinion by White, P. J., 26 So. W. Rep., 500.) In Roscoe’s Criminal Evidence it is said: “The prisoner was indicted for uttering a forged instrument for the delivery of goods, in words and figures following: ‘Gentlemen: Be so good as to let bearer have 51 yards of blue to pattern, etc., and you will oblige W. Reading, Mortimer St.’ The request was not addressed to any one. Tbe prisoner being convicted, tbe recorder respited tbe judgment, to take tbe opinion of tbe judges on tbe question wbetber, as tbe request was not addressed to any individual person by name or •description, it was a request for tbe delivery of goods, witbin tbe words and true intent of tbe statute. All tbe judges wbo were present at tbe meeting beld tbe conviction right.” Rosc. Crim. Ev., 555, 556, 583; Rex v. Carney, 1 Moody Crim. Cas., 351. In Reg. v. Pullbrook, 9 Carrington & Payne, 37, tbe judges beld, that an instrument merely specifying tbe goods may be shown to be a request by tbe custom of tbe trade. See Reg. v. Rogers, Id., 41; Reg. v. Snelling, 1 Dears. Crim. Cas., 219. In Snelling’s case, supra, tbe following instrument was beld to be tbe subject of forgery, though addressed to no one: “Sirs: Please to pay to tbe bearer, Mrs. J., tbe sum of 854l. 10s. for me. James Ramsey.” In Noakes v. The People, 25 New York, 382, it was said: “It is insisted on by tbe counsel for tbe prisoner, in support of the first request, to charge that tbe instrument set out in tbe indictment is not upon its face tbe subject of forgery, as it is not addressed to any one. If it be essential that an order or request for delivery of goods, to make it tbe subject of forgery, should on its face be directed to a particular person, there then would doubtless be force in this objection. A reference to tbe language of tbe section of tbe statute would seem to indicate that there is not much force in this argument. * * Tbe paper under consideration would therefore seem to fall within tbe very words of tbe statute, and is precisely of that character which tbe Legislature, by tbe forgery of and tbe passing or uttering of which, intended to subject tbe offender to indictment and punishment.” Over objection that it was addressed to no one, tbe following order was beld in Tennessee to be tbe subject of forgery: “May: Let Lorie Eogers have nineteen (19.00) dollars in goods, and charge to me. W. C. Pell.” Peete v. The State, 2 Lea, 513; Whart. Crim. Law, secs. 680-695. Mr. Desty says: “An order is subject of forgery, as an •order for payment of money, though no consideration be expressed; and a writing not addressed to any particular person may be an order for tbe payment of money;” and further, that “an order for tbe delivery of goods is subject to forgery although not addressed to any one, or a request to deliver goods to bearer.” Desty Crim. Law, pp. 606, 607, sec. 150, and notes 1-3, for numerous cited authorities; The State v. Bauman (Iowa), 2 N. W. Rep., 956. See also Hendricks v. The State, 26 Texas Crim. App., 179; Dovalina v. The State, 14 Texas Crim. App., 324. If tbe instrument affects property, it is tbe subject of forgery. Alexander v. The State, 28 Texas Crim. App., 186. In tbe case before us, wbetber tbe instrument was or was not addressed to tbe treasurer of Harrison County is not material — does not affect tbe validity of tbe document. Tbe law directs that officer to pay such vouchers, and when tbe voucher is signed by tbe trustees, as directed by tbe statute, it is by law addressed to the treasurer of the county in which is situated the school district. We are now speaking of those school districts which are not independent districts. The treasurer only holds the money subject to the legal and proper order of the trustees of the respective school districts of his county.

Under the one general ground of the insufficiency of the indictment to charge an offense we have discussed this question. It is to be regretted that questions of such gravity are not particularly pointed out by parties desiring their determination, and the authorities relied on by them furnished this court. It would tend greatly to expedite the work of deciding cases on appeal, as well as to accuracy and correctness of decision. We are left but too often to grope through general questions, very generally stated, without assistance from counsel to ascertain the real point at issue. This should not be so. The particular question should be distinctly pointed out and specified.

By bill of exception it is urged that there is a variance between the allegations setting forth the defendant’s name and the proof adduced to support it. It is contended the original voucher shows the name to be D. C. Kennedy, whereas the indictment alleges it to be L. C. Kennedy. If the original voucher could be considered, we are of opinion, upon inspection, it shows no variance. The indictment copied the name as nearly as possible as set out in the original. But it can not be considered, because not identified as the original voucher nor certified to by the clerk. Where original papers are ordered to be sent up with the transcript they should be forwarded with the transcript, and their identity verified by proper certificate of the clerk, and separately from the transcript. Carroll v. The State, 24 Texas Crim. App., 313; The State v. Morris, 43 Texas, 372.

As the record is presented to us, we are of opinion the judgment should be affirmed, and it is so ordered.

Affirmed.

Judges all present and concurring.