Graham v. State (51 S.W.2d 369, 1930)

LATTIMORE, J.

This conviction was for forgery; punish ment, two years in the penitentiary.

The instrument upon which the forgery was predicated purported on its face to be an official act of the clerk of the commissioners’ court. Same is as follows:

“21631 $511.65

“The Treasurer of the County of Uvalde

“State of Texas.

“Will pay to J. W. Graham or order the sum of Five Hundred Eleven & 65/100 100 Dollars out of the - Fund, being the amount allowed by the County Commissioners Court, of said County at their Sept. Term, 1927.

“Witness my hand and Seal of said Court at Uvalde, Texas, this 12 day of Sept. 1927.

“J. W. Graham, County Clerk.

“[Seal.] -, Deputy.

“For Bill-Transcribing Record D.

“Min Book-, Page-

“No.-Class

“Registered the-day of-192^-.

“-, County Treasurer.”

Beyond doubt every element of the offens.e of forgery, as defined and comprehended by our statutes, appears in the instant record, if the alleged forged instrument in writing “purports to be the ac-t of another.” This latter question we will presently discuss.

Forgery in terms of our statute is to “make a false instrument in writing purporting to be the act of another.” Article 979, P. C. Originally, and until 1856, forgery in Texas was defined as the “False making of an instrument in writing,” etc. Hartley’s Digest, art. 1438. Attention is called to this change in the verbiage of our forgery statute because the real or imaginary difference between the making of a false instrument in writing, and the false making of an instrument in writing, has afforded basis for what, in the language of Judge Ramsey, may be called “Much curious learning,” and discussion in forgery cases. The ease of Goucher v. State, 113 Neb. 352, 204 N. W. 967, set forth and annotated in 41 A. L. R. 227, and other cases cited in said report, which are supposed to have bearing on the decision of the instant case, are cases resting upon construction of statutes which define forgery as the false making of an instrument in writing, and the conclusion is announced in those eases that there is a grave distinction Between the “false making of a writing” and the “making of a false writing.” As said in Territory of New Mexico v. Guitierrez, 13 N. M. 312, 84 P. 525, 526, 5 L. R. A. (N. S.) 375, 378, cited in the Goucher Case, supra: “The former term contemplates a certificate which is not genuine, while the latter imports a genuine certificate, the contents or allegations of which are false.” In the annotations of the Goucher Case, supra, as illustrative of the holdings upon statutes similar in definition .to ours, we quote the following taken from the volume at page 250 of 41 A. L. R.: “Under the peculiar wording of the Tennessee forgery statute, which provides that ‘forgery is the fraudulent making or alteration of any writing to the prejudice of another’s rights,’ it was quite properly held in Luttrell v. State (1886) 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886, that a man could, under it, be guilty of forgery in making a paper writing and signing his name to it, and a justice of the peace who incorporated in his bill of costs against the county a fictitious case therein, and charged for it, was held guilty of forgery. It is to be noted that this statute does not employ the words ‘falsely make’ and the other words ordinarily used in defining forgery.”

Without further entry into discussion of the interesting issue as to the soundness of those cases upon statutes differing from ours, we affirm that under our statute, other things necessary to guilt being shown, there remains in the instant case but two points germane, viz.: Did appellant make a false instrument in writing; if so, did it purport to be the act of another?

The instrument set out above and made by appellant was plainly without lawful authority ; was intended to and did injure and defraud; and was sufficient to and did transfer money. Same was a warrant drawn on the county' treasurer of Uvalde county for $511.65, bearing the seal of said county and attested by “J. W. Graham, County Clerk,” and purported to be by authority of the commissioners’ court of said county. The county clerk is ex officio clerk of the commissioners’ court. Article 1040, Rev. Civ. Stats. All warrants issued against the county treasurer shall be signed and attested by the clerk or judge of the court issuing same, under his official seal. Article 1643, Rev. Civ. Stats. The courts have held that a copy of an order of the commissioners’ court allowing a claim, certified and attested by the clerk, under the seal of the court, is sufficient to justify the county treasurer in paying the amount from county funds. Callaghan v. Salliway, 5 Tex. Civ. App. 239, 23 S. W. 837.

The warrant above set out was paid to appellant by the county treasurer. That it was a false warrant is attested by the uncon-troverted fact that the commissioners’ court had allowed and ordered paid to appellant by warrant the sum of $11.65, and that wholly without substantial claim or right or authority he had made the warrant call for $500 more than the correct amount.

The warrant vyas made of seeming validity by the attestation of the official signature of the clerk of said court and the affixing of the seal of said court.

Article 988 of our Penal Code is as follows: “The instrument must purport to be the act of ‘another,’ and within the meaning of this word, as used in defining forgery, are included this State, the United States, or either of the States or Territories of the Union; all the several branches of the government or either of them; all public or private bodies, politic and corporate; all courts; nil officers, public or private, m their official capacity; all partnerships in professions or trades; and 'all other persons, whether real or fictitious, except the person engaged in the forgery.”

It will be noted that within the meaning of the word, “another,” us used in defining forgery, are included “All courts; all officers * ⅜ ⅛ official capacity.” In other words, and whether the reasoning and analogy will hold good in other instances and situations or not, by virtue of the statute above quoted, one who makes a false written document so as that it purports to be the act of a court or a public official in his official capacity, even though such official be the accused himself, is guilty of making a false instrument purporting to be the act of another.

It is safe to say that a document signed by appellant as a private individual, "without pretense that same was the act of a court, and without the seal of said court, would be without lawful efficacy as a county warrant calling for the payment of money by the county treasurer; also that such document, when in form as is the instant warrant, is another and wholly variant instrument if genuine, and we confess our inability to see why the lawmakers might not, if they so desired, say, for the purpose of defining the elements of forgery, that the act of a private individual became and was the act of “another” when such private individual sign his own name to a false and fraudulent document, with such designation and language as to make same appear as that of a public official, verifying and giving validity to such writing.

Commonwealth v. Wilson, 89 Ky. 157, 12 S. W. 264, 11 Ky. Law Rep. 375, 25 Am. St. Rep. 528; Commonwealth v. Howard (Ky.) 12 S. W. 265, 11 Ky. Law Rep. 378; Moore v. Commonwealth, 92 Ky. 630, 18 S. W. 833, 13 Ky. Law Rep. 738.

If the private person who holds the clerk’s office, and the county clerk acting officially, be one legal entity, incapable of separation by law, why require the official designation in any case? Regal process of mány varieties would receive no sanction whatever if signed and attested only by the private person who had been inducted into the office of county clerk and clothed with resultant powers. If the two be in no sense distinct, what necessity for a formal act of the Legislature requiring the official signature of such officer in order to validate legal documents? The reasoning holds good as to all public officials. A deed signed only by the private person, who was sheriff of Uvalde county, would not convey title to property sold at sheriff’s sale. So on ad libitum. Manifestly a writing in form such as is here involved, without the seal of the court and the attestation of the clerk of the court, would be of no validity, void on its face, and not the subject of forgery. Illustrations could be as numerous as desired. By the law, offices are created, and their occupants vested with all sorts of rights and powers as such to bring into existence documents which would affect property and increase or decrease pecuniary obligations, none of which could be' done by them as individuals. Are the courts to say that the Legislature has no power to decree in so important a matter as forgery, and in cases in which otherwise officers could so easily defraud, that when a person acts as an officer in his official capacity he is “another” than the private individual? We do not think so, and are of opinion that the indictment in this case is sufficient, and that the facts meet the allegations in the indictment. The written instrument in this case does not purport to be the act of a private person, but of such person as our Legislature in its sovereign wisdom in such matters has seen fit to designate as “another,” to wit, “a public official acting in his official capacity.”

We have carefully examined each of the other complaints, many of which overlap, as they appear in the record. It would seem manifest that the acquittal of the accused on a charge- of passing a forged instrument, could not in law be made the basis for a plea of former acquittal when he is brought to trial for the forgery of the document for the passing of which he was acquitted, and the court below did not err in declining to consider and submit a plea presenting tbp the’ory of former acquittal.

We have considered the various objections to the charge, but do not deem a discussion of any of them of any value to the profession, or necessary to make apparent our conclusion that the objections were not sound. We see no reason for discussing the special charges seeking to have the court tell the jury that, unless they found appellant intended -to injure and defraud, they should acquit. Each of these charges seems fully covered by the main charge, which on this point was specially full.

Being unable to discover any error in the action of the trial court as revealed by this record, the judgment will be affirmed.

HAWKINS, J., absent.

On Motion' for Rehearing.

HAWKINS, J.

It is alleged in the indictment that appellant “* * * without lawful authority and with intent to injure and defraud'did wil-fully and fraudulently make a false instrument in writing to the tenor following:

“No. 21631 - $511.65

“The Treasurer of the County of Uvalde

“State of Texas.

“Will Pay to J. W. Graham or order the sum of Five Hundred Eleven & 65/100 100 Dollars out of the - Eund, being the amount allowed by the County Commissioners Court, of said County at their Sept. Term, 1927.

“Witness my hand and Seal of said Court at Uvalde, Texas, this 12 day of September, 1927.

“J. W. Graham, County Clerk

“[Seal] -, Deputy

“For Bill-Transcribing Record D.

“Min. Book-, Page-

“No.-Class

“Registered the-day of-192 — -

“-, County Treasurer.”

In the Penal Code, art. 979, forgery is defined as follows: “He is guilty of forgery who without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to he the aet of another, in such manner that the false instrument so made would (if the -same were ■true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property, whatever.”

It may be conceded at the outset that appellant made the instrument in question without authority, because the commissioners’ court had only approved appellant’s account for $11.65; it may be further conceded that under the facts proven he made the instrument with ihtent to injure and defraud. All this may be true, and yet appellant cannot be guilty of forgery unless the instrument “purported to be the act of another.” Article 8, P. C., provides that all words, terms, or phrases used in the Code are to be taken and construed in the sense in which they are understood in common language, unless their meaning is specially defined. The ordinary meaning of “another” is: “Not the same, different, any or some other, any different person, any one else, some one else”; most definitions having reference, in the ordinary use of the word, to some other person. The Legislature knowing that such would be the meaning ascribed to such word in the definition of forgery, and desiring that it have in that respect a broader signification, provided in article 988, P. C., as follows: “The instrument must purport to be the act of ‘another,’ and within the meaning of this word, as used in defining forgery, are included this State, the United States, or either of the States or Territories of the Union; all the several branches of the government or either of them; all public or private bodies, politic and corporate; all courts; all officers, public or private, in their official capacity; all partnerships in professions or trades; and all other persons, whether real or fictitious, except the person engaged, in the forgery.”.

Bearing in mind the last sentence of said article, the meaning seems clear that “another” does not refer to the person engaged in the forgery, but means that if the person engaged in the forgery makes an instrument •purporting to be the act of any of the agencies of government, courts, or officers named in the article it would purport to be the act of “another.” If a third party had made the instrument and signed appellant’s name as county clerk, it would have purported to be the -act of “another.” In the opinion of the writer, the statute has no application to appellant’s own act in signing his name in his official capacity. There is much similarity between such an act and one in which a party signs to an instrument the name