Malton v. State

16 S.W. 423, 29 Tex. Ct. App. 527, 1891 Tex. Crim. App. LEXIS 31

• Court: Court of Appeals of Texas
• Decided: May 28, 1891
• Docket: No. 7441
• Status: Published

Opinion

DAVIDSON, Judge.

The indictment in this case concludes, “against the peace & dignity of the State,” using the character in the place of the word “ and.” It is urged by appellant that this is. not a sufficient compliance with the Constitution and statute in respect to the conclusion of the indictment. Speaking of this, the Supreme-Court of Alabama said that “the sign ‘&’ for ‘and’ has been used in. practice too long for a court now to entertain an objection to its employment.” Pickens v. State, 58 Ala., 364, 365. The use of well understood abbreviations in an indictment -does not render it defective. State v. Reed, 35 Me., 489; Commonwealth v. Hagarman, 92 Mass. (Id Allen), 401; Commonwealth v. Kingman, 80 Mass. (14 Gray), 85; Kelley v. The State, 11 Miss., 518; 1 Am. and Eng. Ency. of Law, p. 20. This court, in Brown v. The State, 16 Texas Court of Appeals, 247, 248, says: “In the appendix to his Unabridged Dictionary, under the title ‘miscellaneous,’ Mr. Webster makes the sign or abbreviation ‘&’ mean the same as the word ‘ and,’ and Mr. Richardson in his dictionary gives many illustrations from the old English authors under the word ‘ and,’ showing that the sign &’ was used synonymously with ‘and’ as an abbreviation for the word ‘and.’ This style of abbreviation has come down to us sanctioned by age and common use for perhaps centuries, and is used even at this day in written instruments, in daily transactions, with such frequency that it may be said to be a part of our language when it is written. ” It is better that in writing instruments all words be written in full, but we see no sufficient reason for holding the indictment vicious because of this matter.

It is contended that the original indictment and forged order are variant from the indictment and order as copied into the transcript. There is what purports to be the original indictment and forged order attached to the transcript. These two papers are in no way authenticated as such original papers, nor are they certified to by the clerk of the trial court as such papers. “Where original papers are ordered to be sent 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 Ct. App., 313; The State v. Morris, 43 Texas, 372. These purported original papers are not so presented to us as to require our consideration of them.

The case was reopened after the first argument for the State had been concluded, and evidence adduced at some length on both sides. This action of the court is complained of. The defendant also introduced evidence at this time. This matter is confided to the discretion of the court, and we see no such error in it as requires a reversal of the judgment. Willson’s Crim. Stats., secs. 2311, 2312.

It is also contended that the evidence is insufficient to support the conviction. The facts show that the appellant forged the order without the knowledge or consent of the party whose name was forged thereto, that he presented it to the merchant to whom addressed to be honored, and when asked if the party whose name was signed to it had signed it he answered in the affirmative, and thereupon obtained the desired goods thereon from the said merchant. It was shown and admitted to be a forgery. Appellant subsequently informed the party whose name he forged of his action in the matter, but this did not relieve the transaction of the fraud. The jury found fraud and we are not authorized to disturb that finding.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.