Gammill. v. State (102 S.W.2d 1056, 1937)

MORROW, Presiding Judge.

Forgery is the offense; penalty assessed at confinement in the penitentiary for life.

The appellant was convicted under the provisions of article 63, P.C., commonly referred to as the “Habitual Criminal Statute,” which provides that one who has three times been convicted of a felony less than capital shall, on the third conviction, be imprisoned for life in the state penitentiary.

The primary offense charged was that of passing the following instrument alleged to be a forgery:

Indorsed on back: “E. M. Davis.”

The evidence shows that the appellant, in the presence of the person to whom he was passing the instrument, forged the name of “E. M. Davis” as an indorsement thereon. There is no proof that the signature of “J. W. Shaw,” the alleged maker of the instrument, was a forgery. In the absence of an allegation in the indictment that the signature of “E. M. Davis,” the indorser, was forged, it follows that such was not sufficient to establish the instrument as a forgery.

The same question was before this court in the case of Gammill v. State, 102 S.W. (2d) 229, opinion delivered February 24, 1937. Upon the reason and authority of that case, the judgment in the present instance is reversed and the cause remanded.