Full opinion text
HARPER, J. Appellant was prosecuted and convicted of forgery. The record contains neither a statement of facts, nor any bills of exception, but a motion in arrest of judgment was filed, vigorously attacking the indictment, and an able brief bas been filed, presenting this ground alone for review. Omitting tbe formal parts, tbe indictment reads: That appellant “without lawful authority and with intent to injure and defraud, did willfully and fraudulently mate a false instrument in writing purporting to be tbe act of another, to wit, tbe act of H. W. St. John, treasurer of tbe ¿Etna Life Insurance Company, of Hartford, Conn., which false instrument is to tbe tenor following: “ ‘The ¿Etna Life Insurance Company of Hartford, Connecticut, Office. “ ‘$1180 January 21, 1913. “ ‘Received from John Johnston, Agent, tbe sum of eleven hundred & eighty dollars being one annual premium, on policy No. 1,570,-851 for Rev. W. A. Lamb-Campbell, Ins’d. “ ‘Next premium due January 21, 1914. “ ‘H. W. St. John, Treasurer & C.’ “Said instrument in writing containing impressed upon it the purported seal of the ¿Etna Life Insurance Company, of tenor following: “ ‘¿Etna Life Insurance Co. H. C.’ —against the peace and dignity of the state.” The contention is that this receipt is not such an instrument upon which forgery can be based, without extrinsic averments; that there is no allegation showing whether the RStna Life Insurance Company is a company, corporation, or individual; that there is no averment showing the connection of H. W. St. John with the Life Insurance Company; or that he had authority to execute such an instrument. It was not necessary to allege whether or not the Life Insurance Company was a corporation. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1127; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309, and other cases cited in Branch’s Criminal Law, § 379. The indictment does allege that H. W. St. John was treasurer of the ¿Etna Life Insurance Company in specific terms, and it was not necessary to allege that he had authority to issue receipts for money paid. This duty necessarily follows the holding of the office of treasurer, and when the treasurer’s name is signed to a receipt there arises a legal obligation on him to have the money forthcoming when demanded by the corporation. If this instrument was a genuine valid instrument, it would create a liability on the part of Mr. vSt. John to his principal, and under such circumstances we think it the subject of forgery without further allegations than are contained in the indictment. The court did not err in overruling the motion in arrest of judgment The judgment is affirmed.
On Motion for Rehearing. Appellant in his motion for a rehearing earnestly insists that while the instrument in this ease under proper averments would be the subject of forgery, yet that it is “an ordinary receipt,” as he terms it, there must be extrinsic averments showing how and in what manner it might become possessed of capacity to defraud, outside of the receipt itself. This is only true in those instances where the instrument does not on its face show that it would create a pecuniary obligation. In this case, the instrument, if true, on its face would create a legal obligation on H. W. St. John to pay the ¿Etna Life Insurance Company the sum of $1,180. Suit could be instituted on it, and, if shown to be true, on it and it alone the company could recover judgment against Mr. St. John, and under such circumstances no other aver-ments than those contained in the indictment were necessary. If he received the money as treasurer of the company named as an annual premium on policy issued to appellant, he would be liable to the company for the money. Eonville v. State, 17 Tex. App. 368. The cases cited by appellant state no other or different rule, as they were rendered in cases where the liability did not appear as a matter of law on the face of the instrument, but if any of them should seemingly do so, then on that point they are overruled. The motion for rehearing is overruled.