Honeycutt v. State

BEAUCHAMP, Judge. The appeal is from a conviction for forgery with a sentence of two years in the penitentiary. The appellant was charged by indictment with the forgery of the name of A. B. Mayfield, by endorsing his name on an instrument in writing fully set out and being as follows: TO THE TREASURER OF GREGG COUNTY Pay to A. B. Mayfield or order the sum of Gregg County, Texas _$118&34 Cts._DOLLARS_ Out of the ROAD & BRIDGE FUND Being the amount allowed by the Commissioner’s Court of said County at its Jan Term, 1945. (Minute ( For Payroll Precinct No. 2 ) Account ( Book H Page 333 Approved WITNESS my hand and seal of said Court at Longview, Texas, this 4 day of Apr., ____________________________________ 1945 County Auditor By B. McClelland DUSH SHAW Deputy County Clerk Jane Lockett (Seal) Assistant Auditor No----------------ROAD & BRIDGE FUND Registered________________This day of.__________’ 1945. Mrs. J. W. Killingsworth County Treasurer *142 The statement of facts discloses that the above warrant was issued as a part of the payroll on the Road & Bridge Fund in Precinct No. 2, and that A. B. Mayfield was not at the time employed by the Precinct, but that appellant caused the warrant to be issued by the Commissioners’ Court and, after procuring the same, endorsed the name of A. B. Mayfield thereon. It will be observed from the foregoing warrant that the issuance was regular on its face. It was approved by the County Auditor acting through his assistant. It was registered by the County Treasurer, but the registration did not fully comply with the requirements of the law in that it did not assign a number and did not give the day and month of the year of 1945 when it was so registered. As we interpret the brief and argument in the case, contention is made that the warrant is not the subject of forgery because of the failure of the Treasurer to give the number, and place the date of the registration thereon. The situation thus brought about is ably discussed from every conceivable standpoint, but we have come to the conclusion that under our Penal Code the only question necessary to determine the attack on the indictment is whether or not the instrument on its face is a valid instrument, or whether or not it is one which is voidable and would require inuendo averments in the indictment to make it-the subject of forgery. If the warrant is valid on its face, and should require no further act for the enforcement of its payment than the performance of a ministerial duty by the County Treasurer, it would appear to be sufficient. If there is yet to be performed some discretionary act further consideration must need be given it. The question presented to us is whether or not the forging of the name of A. B. Mayfield on the back of the instrument described in the indictment transferred, or in any manner affected any property. Had the instrument been issued, approved by the County Auditor and registered in the manner indicated, to A. B. Mayfield for services rendered on a valid contract to render such service, there can be no question but what he could have collected the amount of One Hundred and Eighteen Dollars and Thirty-Four cents. The article of the statute invoked requiring the registration of instruments is mandatory on the County Treasurer, but the purpose of that registration is not to give validity to the warrant but for the sole purpose of determining the order of payment. Had Mayfield presented the warrant for payment and the Treasurer had refused to accept it, his right to force the Treasurer to designate the order of *143 payment is perfectly clear. The length of time or the effort required to collect the warrant does not determine whether or not it is a valid instrument. It is “property” as described in the statute. The registration determines the order of payment of the warrant and may be utilized to calculate the present discount value of the instrument. Admittedly the determination of this case must be based upon decisions of the courts which have developed from conflicting decisions during many years past. This conflict arose because of a difference of opinion as to the applicability of the common law definition of forgery and the definition in our statute, some judges making a distinction and others apparently not doing so. We think the question has been settled and that the rule laid down in King v. State, 57 S. W. 840; Jones v. State, 130 S. W. 1012; and Carter v. State, 116 S. W. (2d) 371, determines the question now before us in favor of the State’s contention that the instrument set out in the indictment is the subject of forgery. Judge Davidson, in the Jones case supra, concisely stated the rule as follows: “Also an instrument falsely made, with intent and purpose to defraud, is a forgery, although, had it been genuine, other steps must have been taken before the instrument would have been perfected, and these steps were not taken. Com. v. Costello, 120 Mass. 358; People v. Bibby, 91 Cal. 470, 27 Pac. 781; Costley v. State, 14 Tex. App. 156; King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792.” The difference in opinion on the subject long existing between Presiding Judge Davidson and Judge Henderson was thoroughly discussion in King v. State, supra, in which Judge Henderson wrote the dissenting opinion. The name of a married woman-living with her husband was charged to have been forged. Judge Henderson took the position that, in as- much as there could be no innocent purchaser as against a married woman not joined by her husband, and that the instrument being void as against her, it could not be the subject of forgery. Judge Davidson’s opinion to the contrary, concurred in by Judge Brooks, need not be fully endorsed in this case because it does, without question, go a great deal further than we are called upon to go in sustaining the indictment in the instant case. At least we can say that, if the majority opinion is correct, there can be no question about the affirmance of this case. The unusual assistance given to this court by appellant’s *144 attorney, in oral argument and by written brief, is fully recognized, but it is our respectful conclusion that it is not necessary to discuss all of the questions raised, in as much as the one relating to the validity of the instrument supercedes all others and, of necessity, determines them against appellant. The judgment of the trial court is affirmed.