RAMSEY, Judge.
Appellant was charged with forgery. The indictment charges forgery of the following instrument:
“Form 648 Standard. (10)
“Santa Fe.
“Ballinger, 6/27, 1907.
“Received of B. D. Pelton, agent......................the sum of Thirty-seven & 50/100 Dollars..............being full payment for loading handling mdse.
“37.50. Geo. J. Jones.”
The substance of the contention in the motion to quash is that the indictment charges no offense against the law, and inferentially the
instrument is not such as to constitute the basis of forgery. Several special exceptions are urged to the validity of the indictment, in that the innuendo and explanatory averments are not sufficient to show by the pleading that it is such an instrument as is the subject of forgery.
Article 539, Penal Code, provides: “It is forgery to make, with intent to defraud or injure, a written instrument, by filling up over a genuine signature, or by writing on the opposite side of a paper so as to make the signature appear as an indorsement.” The charge against appellant is that he filled up an instrument which had been signed by Geo. J. Jones for an amount in excess of what Jones authorized him to insert, and which the facts show was far in excess of the amount legitimately authorized to be inserted in the blank receipt signed by Jones. As a general rule, under the authorities in this State, where the instrument is not on its face, such as will constitute forgery without innuendo or explanatory averments, it is necessary to allege such innuendo or explanatory averments as will show the instrument to be one contemplated by a statute interdicting forgery. The innuendo and explanatory averments allege that Pelton was the agent of the Gulf, Colorado & Santa Fe Railway Company, and properly avers and explains the different expressions in the indictment, so as to explain that B. D. Pelton was the agent of the Gulf, Colorado & Santa Fe Railway Company, and that the two words “Santa Fe” meant the Gulf, Colorado & Santa Fe Railway Company, and that the abbreviation “mdse.” meant merchandise; that B. D. Pelton was the agent at the town of Ballinger, in the county of Runnels, and that he was authorized to employ help and labor such as was necessary for conducting the business of said corporation at said station and office, and that in the discharge of his duty as such agent and employe he had authority to cash out such money belonging to said corporation as was under his care and control at said office and station, and for the further purpose of paying the expenses and cost of conducting such business, and that it was his duty to have the party to whom he paid such money to sign a receipt for the money so paid out, and when this receipt was signed it was Felton’s duty as agent to turn it into the Gulf, Colorado & Santa Fe Railway Company, for which he would receive credit for so much cash. It further avers that at the time Geo. J. Jones was employed at said office and station at Ballinger by the Gulf, Colorado & Santa Fe Railway Company, and that appellant induced him (Jones) to sign his name to what is known as a blank extra-labor receipt, which blank receipt was, after it had been signed, to be filled in for the proper amount, and that said forged instrument purports to be a receipt given appellant by Jones for money paid to Jones for labor at the office and station for handling merchandise, for the amount óf $37.50 — thereby meaning that appellant had paid Jones the sum of $37.50 for the Gulf, Colorado & Santa Fe Railway Com-
party for such labor performed, aud that thereafter on or about the 30th of June, 1907, this instrument was turned into the Gulf, Colorado & Santa Fe Eailway Company and appellant received credit for that amount. It further alleges that at the time the instrument was so forged the railway company was not indebted to Geo. J. Jones for any amount, but if indebted in any amount, it was for much less than the sum set out in the instrument, the exact amount of which indebtedness was for ten days’ service at the rate of $35 per month.
Quite a number-- of exceptions, amounting to ten in number, are reserved to the indictment. Appellant puts them in the concrete about as follows: First. It is alleged that said Jones was in the employ of said railway company, but it is not alleged that he was employed by appellant. Second. It is alleged that appellant had the authority in the discharge of his duty as such agent to pay cash out of such money belonging to the company as was under his care and control for the purpose of paying expenses, etc., but it is not affirmatively alleged that appellant had under his care and control any money belonging to the company at the time of the alleged forgery. Third. It is alleged that said receipt was turned in to the company, but it is not alleged who turned it in, and appellant would not be responsible if someone had subsequently turned it in, and that it should have been affirmatively alleged in the indictment that appellant turned it into the company.
In regard to the first proposition, the indictment does not specifically allege that Jones was employed by appellant, but it does allege that he was the employe of the company at the particular station, etc. We are of the opinion that this is sufficient. If Jones was the employe of that company at that point, and it was appellant’s duty to pay the indebtedness that might accrue in favor of Jones for services rendered, and appellant had authority to employ Jones, and Jones was under his direction and to be paid for bis services by appellant, we are of opinion that this matter is sufficiently alleged when it is averred that Jones was in the employ of the railway company. .
In regard to the second, that is, that it was not alleged affirmatively that appellant had under his care and control money belonging to the railway company at the time of the alleged forgery, we are of opinion that it was not necessary to charge specifically that at the very time of the alleged forgery that appellant then had under his control money belonging to the company sufficient to pay Jones’ claim. It was appellant’s duty, it seems under the facts, to pay off and discharge the employes in and about the office and station at Ballinger out of such money as was taken in for the railway company, and it would be wholly immaterial whether at the particular time the money was on hand or not. If it subsequently came into his hands the money would be subject to the payment of the debt.
The fact that money was not on hand would not affect the forgery of the receipt. Appellant, it seems, had control of the station and the reception and paying out of money taken in at the station, and if he had money in his possession either at the particular time, or subsequently, it would be subject to the payment of Jones’ claim, and it was n'ot necessary, therefore, to allege that the money was in appellant’s possession and under his control at the very time of the alleged forgery.
In regard to the third, we do not believe it has any merit in it, that is, that the indictment should have averred that appellant turned the receipt into the company.
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RAMSEY, Judge.
Appellant was charged with forgery. The indictment charges forgery of the following instrument:
“Form 648 Standard. (10)
“Santa Fe.
“Ballinger, 6/27, 1907.
“Received of B. D. Pelton, agent......................the sum of Thirty-seven & 50/100 Dollars..............being full payment for loading handling mdse.
“37.50. Geo. J. Jones.”
The substance of the contention in the motion to quash is that the indictment charges no offense against the law, and inferentially the
instrument is not such as to constitute the basis of forgery. Several special exceptions are urged to the validity of the indictment, in that the innuendo and explanatory averments are not sufficient to show by the pleading that it is such an instrument as is the subject of forgery.
Article 539, Penal Code, provides: “It is forgery to make, with intent to defraud or injure, a written instrument, by filling up over a genuine signature, or by writing on the opposite side of a paper so as to make the signature appear as an indorsement.” The charge against appellant is that he filled up an instrument which had been signed by Geo. J. Jones for an amount in excess of what Jones authorized him to insert, and which the facts show was far in excess of the amount legitimately authorized to be inserted in the blank receipt signed by Jones. As a general rule, under the authorities in this State, where the instrument is not on its face, such as will constitute forgery without innuendo or explanatory averments, it is necessary to allege such innuendo or explanatory averments as will show the instrument to be one contemplated by a statute interdicting forgery. The innuendo and explanatory averments allege that Pelton was the agent of the Gulf, Colorado & Santa Fe Railway Company, and properly avers and explains the different expressions in the indictment, so as to explain that B. D. Pelton was the agent of the Gulf, Colorado & Santa Fe Railway Company, and that the two words “Santa Fe” meant the Gulf, Colorado & Santa Fe Railway Company, and that the abbreviation “mdse.” meant merchandise; that B. D. Pelton was the agent at the town of Ballinger, in the county of Runnels, and that he was authorized to employ help and labor such as was necessary for conducting the business of said corporation at said station and office, and that in the discharge of his duty as such agent and employe he had authority to cash out such money belonging to said corporation as was under his care and control at said office and station, and for the further purpose of paying the expenses and cost of conducting such business, and that it was his duty to have the party to whom he paid such money to sign a receipt for the money so paid out, and when this receipt was signed it was Felton’s duty as agent to turn it into the Gulf, Colorado & Santa Fe Railway Company, for which he would receive credit for so much cash. It further avers that at the time Geo. J. Jones was employed at said office and station at Ballinger by the Gulf, Colorado & Santa Fe Railway Company, and that appellant induced him (Jones) to sign his name to what is known as a blank extra-labor receipt, which blank receipt was, after it had been signed, to be filled in for the proper amount, and that said forged instrument purports to be a receipt given appellant by Jones for money paid to Jones for labor at the office and station for handling merchandise, for the amount óf $37.50 — thereby meaning that appellant had paid Jones the sum of $37.50 for the Gulf, Colorado & Santa Fe Railway Com-
party for such labor performed, aud that thereafter on or about the 30th of June, 1907, this instrument was turned into the Gulf, Colorado & Santa Fe Eailway Company and appellant received credit for that amount. It further alleges that at the time the instrument was so forged the railway company was not indebted to Geo. J. Jones for any amount, but if indebted in any amount, it was for much less than the sum set out in the instrument, the exact amount of which indebtedness was for ten days’ service at the rate of $35 per month.
Quite a number-- of exceptions, amounting to ten in number, are reserved to the indictment. Appellant puts them in the concrete about as follows: First. It is alleged that said Jones was in the employ of said railway company, but it is not alleged that he was employed by appellant. Second. It is alleged that appellant had the authority in the discharge of his duty as such agent to pay cash out of such money belonging to the company as was under his care and control for the purpose of paying expenses, etc., but it is not affirmatively alleged that appellant had under his care and control any money belonging to the company at the time of the alleged forgery. Third. It is alleged that said receipt was turned in to the company, but it is not alleged who turned it in, and appellant would not be responsible if someone had subsequently turned it in, and that it should have been affirmatively alleged in the indictment that appellant turned it into the company.
In regard to the first proposition, the indictment does not specifically allege that Jones was employed by appellant, but it does allege that he was the employe of the company at the particular station, etc. We are of the opinion that this is sufficient. If Jones was the employe of that company at that point, and it was appellant’s duty to pay the indebtedness that might accrue in favor of Jones for services rendered, and appellant had authority to employ Jones, and Jones was under his direction and to be paid for bis services by appellant, we are of opinion that this matter is sufficiently alleged when it is averred that Jones was in the employ of the railway company. .
In regard to the second, that is, that it was not alleged affirmatively that appellant had under his care and control money belonging to the railway company at the time of the alleged forgery, we are of opinion that it was not necessary to charge specifically that at the very time of the alleged forgery that appellant then had under his control money belonging to the company sufficient to pay Jones’ claim. It was appellant’s duty, it seems under the facts, to pay off and discharge the employes in and about the office and station at Ballinger out of such money as was taken in for the railway company, and it would be wholly immaterial whether at the particular time the money was on hand or not. If it subsequently came into his hands the money would be subject to the payment of the debt.
The fact that money was not on hand would not affect the forgery of the receipt. Appellant, it seems, had control of the station and the reception and paying out of money taken in at the station, and if he had money in his possession either at the particular time, or subsequently, it would be subject to the payment of Jones’ claim, and it was n'ot necessary, therefore, to allege that the money was in appellant’s possession and under his control at the very time of the alleged forgery.
In regard to the third, we do not believe it has any merit in it, that is, that the indictment should have averred that appellant turned the receipt into the company. Eor, in our judgment, was it necessary in this indictment for forgery to allege that it was turned into the company at all. The forgery, if a forgery, was complete at the time appellant filled in the amount in the blank receipt, and it would be immaterial that he passed the instrument to the company in order to receive credit for it, and therefore unnecessary to allege it. It would be immaterial, therefore, whether appellant turned it in or whether anybody else turned it in to the company. It may be the subject of the charge of passing the forged instrument on the part of the party who did turn it in if the party was cognizant of the fact that it was forged, but appellant is charged only with forgery by filling in a blank receipt for an amount beyond what Jones was entitled to receive. We have noticed these three propositions, because appellant puts the motion to quash rather in the concrete in the statement of the case in his brief. We are of opinion that the innuendo and explanatory averments are sufficient to show the instrument alleged to be forged is such an instrument as would increase the liability of the railroad had it been genuine. We are therefore of the opinion that there is not sufficient merit in the motion to quash the indictment to authorize a reversal of the case.
There was introduced against appellant evidence of the insertion in similar blank receipts of amounts in excess of those which should have been inserted. In other words, there was evidence of forgery of other instruments similar to the one relied upon in the indictment. Appellant reserved various, sundry and divers exceptions to the introduction of these instruments. In connection with these instruments, the parties who had signed the instruments went into a full detailed statement of each particular transaction, as fully as did Jones in regard to the one relied upon for conviction. In other words, the details in regard to each one of these were as complete and full as they were in regard to the transaction relied upon in the indictment. It has often been held that evidence of extraneous and contemporaneous crimes could be introduced in evidence to develop intent or system as well as other matters. In this case there was by cross-examination of the witness Jones a studied and aggressive effort to show that the receipt which is alleged to be the basis of forgery in this case, was executed in the condition it was when pro
duced and for the sum therein named. Jones is made to say finally that he believed that there was nothing written in the printed receipt, that is, that the $37.50 which finally appeared in same, was not written therein when signed by him, but does say finally that he is not certain. He was also pressed to say if he had not signed a payroll in which the same amount of money appeared to be due him. Evidently the theory of the defendant was, and his entire effort was directed along this line, to break down the testimony of Jones by cross-examination, innuendo and suggestion, and to induce the jury to believe that he had in fact signed the payroll and^ receipt for the amount of money named therein. In this condition of the record the State was permitted to introduce proof of other contemporaneous crimes and similar transactions affecting a large number of other laborers and persons in that 'vicinity, for the purpose of showing that appellant was engaged in swindling generally and in padding payrolls for the purpose of corroborating Jones and showing the intent and purpose with which he had acted in the transaction now under consideration. In this case the court instructed the jury as follows: “If any evidence has been introduced before you tending to show that the defendant made with intent to injure or defraud, other written instrument or instruments by filling up over genuine signature or signatures, in such manner and under such circumstances as to constitute the offense of forgery, as that offense is defined in the foregoing charge, you are instructed that such evidence is admitted for the sole purpose of showing (if it does show) the intent of defendant' in the transaction with which he is charged in this case, if such offense was committed, and said testimony does not and should not be considered as affecting in any way the question whether the defendant forged the instrument set out in the indictment.” This was an. admirable presentation of this phase of the law and follows the opinion of this court in the case of Taylor v. State, 50 Texas Crim. Rep., 381.
We believe that appellant was tried on a valid indictment; that the testimony introduced against him, which was objected to, was admissible for the purposes for which it was limited, and that he has had a fair submission of the issues arising in his case, and that the evidence abundantly supports the verdict. r The judgment is therefore affirmed.
Affirmed.
Davidson, Presiding Judge, dissents.