
    DREEBEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied June 27, 1913.)
    1. Pensions (§ 10) — Confederate Pensions —State Appropriation — Statutes — Warrants.
    Act March 26, 1909 (Acts 31st Leg. c. 118), appropriated $500,000 for confederate pensions for the years 1909 and 1910 but did not take effect until 90 days after March 26, 1909, and before that time, and before the appropriation became effective, the Legislature at the same session passed the General Appropriation Act May 12, 1909 (Acts 31st Leg. [2d Extra Sess.] c. 21), containing general appropriations for confederate pensions for those years. Held that, since under the Constitution as it, then existed the Legislature could appropriate only $500,000 for each of said years for that purpose, the General Appropriation Act superseded that of March 26, 1909, and hence the comptroller, in issuing pension warrants for that year, properly stated that the money was to be paid out of the appropriation covered by the Genera] Appropriation Act.
    [Ed. Note. — For other cases, see Pensions, Dec. Dig. § 10.]
    2. Pensions (§ 10) — Confederate Pensions —Warrants—Form—Signature by State Treasurer
    Under Act August 19, 1910 (Acts 31st Leg. [3d Called Sess.] c. 17) § 26, subd. 3, declaring that the forms for pension warrants shall be prescribed by the comptroller, and Act March 26, 1909 (Acts 31st Leg. c. 118) §§ 7, 15, regulating the issuance and payment of such warrants, it was not necessary that they he countersigned by the state treasurer before they were issued and sent out by the comptroller in order to be valid.
    [Ed. Note. — For other cases, see Pensions, Dec. Dig. § 10.]
    3. Pensions (§ 10*) — Pension Warrants — Form — Negotiability.
    Under Act August 19, 1910 (Acts 31st Leg. [3d Called Sess.] c. 17) § 26, subd. 3, providing that the forms for pension warrants shall be prescribed by the comptroller, and that they shall be uniform in size, arrangement, matter, and form, etc., the comptroller has power to' make such warrants negotiable or quasi negotiable by making them payable to order.
    [Ed. Note. — For other eases, see Pensions, Dec. Dig. § 10.]
    4. Forgery (§ 7) — Subject of Forgery — Pension Warrants — Indorsement.
    Pen. Code 1911, art. 924, declares that 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 be the act of another, in such a manner that I the false instrument, so made, would, if true, have “in any manner affected any property whatever.” Article 931 defines such clause to mean every species of conveyance or undertaking in writing which supposes a right in the person purporting to execute it to dispose of or change the character of property of every kind, and which can have such effect when genuine. Article 930 defines pecuniary obligation to include every instrument having money for its object and every obligation for the breach of which a civil action for damages may be lawfully brought. Article 933 declares that 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. Held that, where a confederate pension warrant was drawn payable to the order of a pensioner who had died, and the warrant came into the hands of defendant, a clerk in the pension commissioner’s office, who forged an indorsement of the pensioner’s name on the back of the warrant and cashed it, the forgery of such instrument was sufficient to “in some manner affect the property” so as to constitute forgery without reference to whether the warrant was negotiable or not.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 2, 3, 8-15; Dec. Dig. § 7.*
    For other definitions, see Words and Phrases, vol. 3, pp. 2900-2910; vol. 8, p. 7665.]
    5. Forgery (§ 44) — Pension Warrants — Conviction — Evidence.
    In a prosecution for forgery of a confederate pension warrant, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 117-121; Dec. Dig. § 44.*]
    6. Forgery (§ 42*) — Confederate Pension Warrant — Issuance — Affidavits — Evidence.
    In a prosecution for forging the indorsement of a confederate pensioner to whom the warrant had been issued after he had died, the necessary affidavits required to accompany such warrant, stating the county of the pensioner’s residence, his post office address, and that he was the identical person to whom a pension had been granted, and that the conditions which existed at the time of making the application, on which the pension was granted, still existed, which were also shown to have been forged by accused, and which were clearly identified, were admissible.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 115; Dec. Dig. § 42.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Travis County; George Calhoun, Judge.
    E. L. Dreeben was convicted of forgery, and he appeals.
    Affirmed.
    Gregory, Batts & Brooks and Warren W. Moore, all of Austin, and Israel Dreeben, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
    
      
      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted of forgery, and his penalty fixed at three years in the penitentiary.

The indictment is attacked on several grounds. After the necessary and usual formal allegations,, the indictment alleges as follows:

“That E. L. Dreeben in said county and state, on or about the 1st day of June, in the year of our Lord 1911, and before the presentment of this indictment, did then and there without lawful authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing purporting to be- the acts of others, to wit, purporting to be the act of W. W. Montgomery and J. W. Moore, by then and there writing on the back of a treasury warrant of the tenor following, to wit:

Forcy v. State, 60 Tex. Cr. R. 209, 210, 131 S. W. 586, 32 L. R. A. (N. S.) 327, correctly arid aptly held: “There is in the books much curious learning on the subject of forgery,- and the office of the tenor and purport clauses in the indictment for this offense have been refined upon by courts until it is sometimes difficult for one to grasp and comprehend the office of either, and these refinements have sometimes, it seems to us, gone to the extent of overshadowing and dwarfing the substance of the matter required to be alleged. What instruments may be the subject of forgery has also quite frequently received judicial interpretation. These instances and illustrations are numerous and not always wholly consistent. We think in later times the niceties of pleading in prosecutions for forgery have not always been recognized; that the trend of modern decisions is to look rather to the substance than to the form that such instruments may take. We cannot be unmindful of the fact that, with the progress of civilization and the frequency in commerce with which business is transacted by notes, bills, and letters of credit, it is essential to the protection of the citizen and the integrity of commerce that a reasonable and sensible rule in prosecutions for forgery should be established. In olden times trade was either a matter of barter or for money in hand. In these times, as we know, but a small per cent, of commercial transactions are carried on and complet-

“Indorsed across the back of It: ‘W. W. Montgomery, J. W. Moore’ (the latter right under the 'former name) — the names of W. W. Montgomery and J. W. Moore so as thereby to make said writing appear as an in-dorsement of the said treasury warrant by the said W. W. Montgomery and the said J. W. Moore and in such a manner that the said false indorsements so made would, if the same were true, have created a pecuniary obligation and have transferred said treasury warrant.”

It will be seen that the forgery is alleged to consist in appellant’s signing and forging the names of said Montgomery and Moore, indorsed by him on the back thereof.

This court, through Judge Ramsey, in ed in any other form than by note, bond, checks, orders, and drafts. While having due regard for the safety of the individual citizen who may be prosecuted for forgery of any of the manifold instruments conveying or undertaking to convey moneys and property, it is essential that at least some fair regard shall be had to the protection of the great body of our people who are interested in the honesty and integrity of these instruments.”

Among the grounds contesting the validity of this indictment, the material ones, we think, are in substance that said warrant is not negotiable, and the forged indorsement of the name of the payee in blank on the back in no way changes or affects the legal status of the paper and in no 'way affects it or constitutes evidence of a valuable right. That it is not countersigned by the state treasurer and for that reason is incomplete, which is apparent on its face. That the comptroller had no power to draw the warrant to the order of the payee and thereby make, or attempt to make, it negotiable. And that instead of showing that the warrant was to be paid out of money appropriated by the act of May 28, 1909 (Act 31st Leg. [2d Extra Sess.] e. 28), should have referred to the act of March 26, 1909.

The act of March 26, 1909, p. 231, passed at the regular session of the Thirty-First Legislature, and the Acts of August 19, 1910, р. 37, regulating the duties of the comptroller in the issuance of such warrants, and the act of May 12,1909 (Laws 1909 [2d Extra Sess.], с. 21), passed at the regular session of the Thirty-First Legislature, regulating the duties of the state treasurer as to such warrants, were in force at the time of the issuance and alleged forgery of this warrant. By the said act of March 26, 1909, appropriating $500,000 for the respective years, beginning September 1, 1909, and ending August 31, 1910, and beginning September 1, 1910, and ending August 31, 1911, from which payment of the confederate pensions could be made, this act and none of it took effect until 90 days after March 26, 1909. Before this part of the act of March 26, 1909, appropriating said money, took effect, or the appropriation thereunder became effective, the Legislature in the same regular session passed the general appropriation act and by that general appropriation act (page 514) it appropriated for said respective years the same said sum of $500,000.

Under the constitutional provision, as it then was, the Legislature could appropriate only $500,000 for each of said respective years. There is no question but- that the general appropriation act was intended to be in lieu of, and was in lieu of, said appropriation made by the act of March 26, 1909, and entirely superseded the prior act. So that the comptroller, in issuing the warrant, properly stated that the money was to be paid out of the appropriation of said general appropriation act.

Section 25, p. 41, and other sections of the act of August 19, 1910, prescribing the duties of the comptroller in issuing all pay warrants, prescribes minutely what shall appear in the face of such warrants, but expressly therein “excepts claims- for pension therefrom.” And in section 26, p. 42, subd. 3, expressly provides “the forms for pensions (pension warrants) shall be prescribed by the comptroller and shall be uniform in size, arrangement, matter and form.” And again in the same act (section 30, p. 43), in order to show that pension warrants shall not contain on their face all of what other warrants provided for shall contain, expressly - again enacts: “Applications for pensions and the issuance of , pension warrants shall not be subject to the provisions of this act” Then again • section 7, p. 233, of said act of March 26, 1909, after regulating how and when the comptroller shall issue pension warrants, enacts: “The comptroller of public accounts shall draw his warrant to the amount of such pension on the treasurer, and upon presentation' the treasurer shall pay the same out of any money in the treasury which- may be appropriated í to' this purpose.” And in section 15 of said act (page 234) it is again enacted: “And the eomptrol-. ler shall issue his warrant for the. amount due said pensioner in the manner hereinbe-fore provided for, all pensioners to be paid at the end of each quarter and shall begin on the first day of September and March after the filing and establishment of the applications herein provided for.”

It it perfectly apparent by the provisions in said several acts and the general trend of our laws on the subject that the Legislature intended to make and did make a distinction of pension warrants from any and all other pay warrants issued by the comptroller. And from all this it is our opinion that the Legislature did not intend that the treasurer should countersign these pension warrants so as to make them valid and payable; or, in other words, that they were perfectly valid and the treasurer required to pay them without his previously countersigning them before the comptroller sent them out.

The evidence in this case clearly and without contradiction shows that the comptroller and treasurer construed and acted upon the law, as stated above. We know as-current history of this state', and'by the legislation on the subject, that the confederate pensioners are scattered all over, and in most if not every county in this state. The treasurer testified that there were about 12,500 of them, and that about that number of pension warrants were to -be issued every quarter to pay’ them, and that the comptroller’s department, who issued the warrants, could not wait until the • first day -of the quarter to write up and mail out the pension warrants. That the pension warrants are mailed out by the comptroller’s office and paid when presented to his department, the treasurer’s office. Mr. Beauchamp, who -was an employs and clerk in the-comptroller’s department at the time the said warrant in this case was issued and who issued it, testified that the original warrant in this case, which was at the time he was testifying in his hands, was a pension treasury warrant and that such paper as that was cashed at the treasurer’s office when-presented for that purpose; that he, as such official in the comptroller’s office, got up all pension .warrants at that time and particularly the one in this case; that there were something near 12,000 such warrants to be sent out every quarter, and that they began starting them out about six weeks before they were dated; that they were dated the date they were supposed to he collected, but they mailed them out as soon as possible so the pensioners could get them and get their money on them by the date of payment.

We know of no law, and have been unable to find any, after the most diligent search, and appellant has cited us to none, which shows that the comptroller, under the power and authority given to him, is prevented from making them negotiable, or at least quasi negotiable. Our Supreme Court in Leach v. Wilson County, 62 Tex. 332, in discussing the character of a warrant properly allowed and issued by Wilson county upon the county treasurer, as to such warrants said: “When a claim has been presented and allowed, and a warrant upon the treasurer has been drawn in accordance with the order of allowance, while the order of the county is primary evidence of the right, yet the warrant is something more than a mere voucher; it is prima facie evidence of an existing and matured debt, which throws the burden upon the county to repel by showing the want of consideration or some other valid defense. Burroughs on Public Securities, p. 638, and authorities, note 2.” We can see no good reason why such warrants should not be made negotiable or quasi negotiable. As stated above, we know as current history and by the legislation on the subject, even without the testimony in this ease, that the 12,-000 or more confederate pensioners are in almost if not every county in this state. The largest amount at the time of the issuance of the warrant in this case which could be issued to any of said pensioners was $24. Most of the warrants issued were for less amounts. It would be entirely impracticable, if not impossible, for the holders of these pension warrants, when they receive them, to come to the city of Austin and present such warrants to the treasurer in person for payment. “In these times, as we know, but a small per cent, of commercial transactions are carried on and completed in any other form' than by note, bond, checks, orders, and drafts.” Eorcy v. State, 60 Tex. Or. R. 210, 131 S. W. 586, 32 L. R. A. (N. S.) 327.

So in this case, we know that such pension state warrants as were issued in this case are cashed and collected through the banks and other like instrumentalities by the pensioner, and that he indorses simply and solely his name on the back of such warrant, and that through that channel, and practically through that channel alone, such warrants are cashed by the state treasurer on presentation to him for payment. As illustrating this, the warrant in this ease was so presented and cashed by the state treasurer. The business of issuing, collecting, and having paid such warrants in such manner could hardly otherwise be conducted.

So that in this case, this warrant having been issued in a negotiable form by the comptroller, if it had reached the payee thereof and he had indorsed simply his genuine signature on the back thereof and delivered it to any bank or other person, it would thereby have evidenced the prima facie, if not the real, transfer thereof to such banker or other person; and we think there is no question but that any one in possession of such warrant, who forged the name of such payee on the back, as was done in this instance, would have been guilty of the forgery thereof, and there is no question but that such indorsement under such circumstances would in at least some, “manner have affected said property.” P. O. art. 924. And that such indorsement, if genuine, would have transferred or in some manner at least have affected property, and that such indorsement would unquestionably have indicated and supposed a right in the person purporting to execute it to dispose of or affect the same. P. G. art. 931.

As prescribed by our statutes under which this prosecution and conviction was had: “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 be the act 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.” “ ‘Pecuniary obligation’ means every instrument having money for its object, and every obligation for the breach of which a civil action foi-damages may be lawfully brought.” P. O. art. 930. “By an instrument which would ‘have transferred or in any manner have affected’ property, is meant every species of conveyance, or undertalcing in writing, which supposes a right in the person purporting to-execute it, to dispose of or change the character of property of every kind, and’which can Have such effect when genuine.” P. O-art. 931. And “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.” P. C. art. 933.

What character of perfectness or imperfectness is necessary to be shown on the-face of a claimed forged document has many times been before this court and well considered and thoroughly discussed. In-the case of King v. State, 42 Tex. Or. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792, this court, through Presiding Judge Davidson, discussed and cited authorities and announced the law so clearly and tersely thereon we can do no better than to here-quote, as applicable to this case, what he therein held and said, which we now do: “Mr. Bishop, in his work on Criminal Law, says: ‘See. 533. The false instrument must be such as, if true, would be of some real or legal efficacy, since otherwise it has no tendency to defraud. In other words, it must either be in fact, or must appear to be, of legal validity, but it need not have both the appearance and the reality.’ In support of this proposition he cites many authorities collated in note 5 under above section. In section 538 he says: ‘A writing affirmatively invalid on its face cannot be the subject of forgery, because it has no legal tendency to effect the fraud. Entering into this question is the distinction many times adverted to in these volumes that every man is presumed to know the law, yet not to know the facts.’ So it will be seen that the distinction is clearly drawn between knowledge of law and knowledge of fact. If the instrument is void on its face, it cannot be the subject of forgery, but if valid on its face, though invalid as a matter of fact or under the proof, it would still be the subject of forgery. In section 541 the same author says: ‘Since men are not legally presumed to know facts, a false instrument, good on its face, may work a fraud, though extrinsic facts show it to be invalid even if it were genuine. Therefore there may be forgery of such an invalid instrument.’ In People v. Galloway, 17 Wend. [N. Y.] 540, 542, this language is found: ‘There is a distinction between the case of an instrument apparently void and one where the invalidity is to be made out by the proof of some extrinsic fact. In the former case the party who makes the instrument cannot in general be convicted of forgery, but in the latter he may.’ So with a fictitious person. ‘From this doctrine of a seeming validity sufficing, though it is not real, we have the further result that if the person, whose instrument the forgery purports to be, is dead, or if he is a mere fictitious person, still, as the question of the existence of such a person is one of fact, not of law, and the instrument appears valid on its face, the offense is complete. Bish. Grim. Law, § 543. In section 544: ‘(1) Restated, the ordinary doctrine is that, for the invalidity of the instrument to be a perfect defense, the defect must appear on its face, or, to exclude this sort of defense, it must appear on its face to be good and valid, for the purpose for which it was created. In another aspect: (2) Evidence of fact. The instrument must be such that if it were genuine it would be evidence of the fact it sets out.’ We are not undertaking here to discuss instruments or writings uncertain on their face. So it has been held that, if there is a bare possibility that another may be imposed upon, a conviction will be sustained. State v. Dennett, 19 La. Ann. 395; State v. Gryder, 44 La. Ann. 962, 11 South. 573 [32 Am. St. Rep. 358]. ‘It is immaterial whether the counterfeited instrument be such as, if real, would be effectual to the purpose it intends. If there is only a resemblance sufficient to impose upon those to whom it is uttered, or to the public generally, it is sufficient.’ 3 Chit. Grim. Law, 1035, 1039. ‘It is not necessary to the offense that the instrument should be one which, if genuine, would be a binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the paper to relieve from the character of forgery.’ 13 Am. & Eng. Enc. of Law (2d Ed.) 1088; United States v. Turner, 7 Pet. 132, 8 L. Ed. 633. In the same volume (13 American and English Encyclopedia of Law) we find this language: ‘As a general rule, any writing in such form as to be the means of defrauding another may be the subject of forgery, or alterations in the nature of forgery.’ Page 1093, note 3, for collation of numerous authorities. ‘The writing need not be such as, if genuine, would be legally valid. If it is calculated to deceive and intended to be used for a fraudulent purpose, this is enough.’ Notes 4 and 5, Id., for authorities. An instrument valid on its face is equally the subject of felonious forgery or felonious uttering, though collateral or extrinsic facts, of whatever character, may exist that would render it absolutely void if genuine.’ Same authority, note 6, for authorities; People v. Rathbun, 21 Wend. [N. Y.] 509; People v. Galloway, 17 Wend. [N. Y.] 540; Russ. Grimes, 317-328; State v. Johnson, 26 Iowa, 407 [96 Am. Dec. 158]; State v. Hilton, 35 Kan. 338, 11 Pae. 164; State v. Pierce, 8 Iowa, 231. To. the same effect is Anderson v. State, 20 Tex. App. 595; and it follows the rule laid down by Mr. Bishop, supra. In view of these authorities, it will hardly be necessary to discuss the question further. If they are correct, this instrument is clearly the subject of forgery.”

Again, in the case of Wheeler v. State, 62 Tex. Or. R. 373, 137 S. W. 124, this court, through Judge Harper, held: “In the case in Costley v. State, 14 Tex. App. 156, it is held: ‘There can be no doubt but that a bail bond, executed for the appearance of a party to answer before the proper court an accusation against him of an offense against the law, is a pecuniary obligation to the state, binding upon him and his sureties, and is one which, by the very terms of the law permitting it, can be enforced in case of a breach of its conditions. Code of Criminal Procedure, art. 282 et seq., and art. 400 et seq. If an instrument in writing, which creates a pecuniary obligation, is a subject of forgery, then a bail bond is also such an instrument as may be the subject of forgery. Penal Code, art. 435; Com. v. Linton, 2 Ya. Cas. 476. It is not necessary that a bail bond should have been forfeited or attempted to be forfeited before it is the subject of an assignment and prosecution for forgery, for ‘an instrument, falsely made with intent to defraud, is a forgery, although, if it had been genuine, other steps must have been taken before the instrument would have been perfected, and these steps are not taken.’ Com. v. Costello, 120 Mass. 358. See, also, Morris v. State, 17 Tex. App. 660; Dooley v. State, 21 Tex. App. 550 [2 S. W. 884]; Lassiter v. State, 35 Tex. Cr. R. 540 [34 S. W. 751]; State v. Gullette, 121 Mo. 456, [28 S. W. 354]; and notes cited in 8 Am. St. Rep. 467. And in Cyc. vol. 19, p. 1384, the rule is laid down in speaking of forgery: ‘A paper is hot invalid on its face because certain steps have * * * not been taken’— citing Com. v. Wilson [89 Ky. 157, 12 S. W. 264], 25 Am. St. Rep. 528; Com. v. Costello, 120 Mass. 358; State v. Gee [28 Or. 100] 42 Pac. 7; Foute v. State, 15 Lea [Tenn.] 712, and other cases.”

Again this court, through Judge Harper, in another recent case (Horn v. State, 150 S. W. 949), quoting from Mr. Wharton, said: “Mr. Wharton in his work on Criminal Law, § 739 et seq., lays down the rule ‘that it' is only necessary, in order to make the instrument a subject of forgery, that it should be capable of being used as proof in a legal action.’ ”

Appellant presses and persistently urges that the said warrant was nonnegotiable and cites many authorities on that point, and, based on his contention that the warrant was not negotiable, he vigorously contends that the forging of the name by appellant of the payee, by indorsement on the back thereof, cannot be forgery. We cannot agree to this contention. Unquestionably the law is that a nonnegotiable instrument can be forged as well as a negotiable instrument. The fact, if.it be so, that, in order to maintain a suit in the civil court on a nonnegotiable instrument by an indorsee thereof, proof in addition or other than the mere indorsement in blank by the payee might be necessary, yet, even if that should be so, the indorsement by the payee would certainly be at least one link of the evidence to establish the transfer or assignment thereof to the holder in possession. And such indorsement of a nonnegotiable instrument would be some evidence which supposes a right in the person purporting to execute it to dispose of the same, and so would the writing and iridors-ing of the name by the payee thereof affect the paper so as to make the signature appear as an indorsement thereof. We think clearly under the statute that, whether the warrant be held negotiable or nonnegotiable, the forged indorsement of the payee’s name on the back amounts to forgery.

So that, whether the warrant is held to be negotiable or nonnegotiable, there can be no question but that the said warrant, in the condition it was, if indorsed by the genuine signature of the payee thereof, was capable of deceiving and unquestionably did deceive and was the subject of forgery, as alleged in the indictment herein. In this ease the evidence demonstrates, without contradiction, that the warrant as issued and the forged indorsement of the payee’s name thereon not only deceived the bank through which it passed but the state treasurer himself, who paid and cashed it when it was presented to him for that purpose in the condition it was. In our opinion the said indictment was perfectly legal and valid, and none of appellant’s objections thereto were good, and that all that was necessary or proper to be alleged in the indictment was sufficiently alleged.

The evidence in this case was uneon-troverted. There was no conflict therein. The appellant offered no evidence whatever. It authorized the jury to believe and find, if it did not unquestionably fully establish, that for some time prior to June 1, 1911, on which this forgery is charged, appellant was a clerk or at work in the pension commissioner’s office of this state and daily came in contact, because thereof, with the comptroller’s department in the issuance of pension warrants ; that the W. W. Montgomery, in whose favor this warrant purported to be issued, for many years prior to his death lived at Ennis, Ellis county, Tex., and prior to his death he was one of the confederate pensioners and had drawn a pension quarterly for some time prior to his death; that he never lived at San Antonio; that he died July 5, 1910; that, in order for any pensioner to get a pension quarterly, the law required that on or after the first of each quarter such pensioner to make an affidavit stating the county of his residence and his post office address, and that he was the identical person to whom a pension had been granted under the law, and that the conditions which existed at the time of making the application and on which the pension was granted still exist, and that his said affidavit shall be supported by the affidavit of some other credible person to the same facts; that such affidavits shall be filed with the pension commissioner for examination, and, if approved, it shall be furnished to the comptroller, and on the basis of it the comptroller should draw his warrant on the treasurer for the- amount of such quarterly pension; that the,appellant forged both of such affidavits and as an official from the pension commissioner’s office presented them to the comptroller and had the comptroller to issue said warrant; that, after the issuance of said warrant, it in some way, not made clear how by the evidence, went into the hands of the appellant, and that he thereupon forged the indorsement of the name of the payee thereof and of J. W. Moore, and that thereafter, based on said indorsements, the warrant was presented to the treasurer for payment and he paid the same. In addition the evidence tends to show and was sufficient for the jury to believe therefrom that on June 1, 1911, at which time he is charged with said forgery, appellant fled from Austin, in Travis county, where he then lived, and where his duties called him to be; that the sheriff of Travis county on that date diligently hunted for him but could not find him in Travis county and did not find him until some day or two later' when he was arrested and incarcerated by the sheriff of Tarrant county, Tex., in Ft. Worth, whence the sheriff of Travis at once went, received him, and brought him back to Travis county under arrest ; that upon his arrest in Ft. Worth there was procured from off his person or in his baggage a bank deposit book of one of the banks of Austin, Tex., the entries in which tended to show incriminating evidence in connection with the forgery charged herein; that that night, in the sleeper on the trip from Ft. Worth to Austin, appellant surreptitiously and without the knowledge and consent of the Travis county sheriff purloined the said bank book and made way with it; that, although the sheriff diligently searched therefor and had searches made all up and down the railroad over which they traveled that night, he could never find that book. Taken as a whole, we think the evidence, while it might have been strengthened on some points by the state, was sufficient to sustain the verdict.

The court did not err in admitting, over the appellant’s objections, the said forged affidavits and warrant. They were clearly identified, produced, shown to be forged by appellant, and were clearly admissible in evidence.

The charge of the court of what effect and for what purpose the said forged affidavits were admitted and could be used in evidence properly, fully, and correctly instructed the jury, and it was necessary and proper for the court to give the instructions and restrictions for what such testimony could be used, and that it could not be the basis of a conviction of the appellant for the forgery of said warrant.

We have carefully read and studied this case and the brief and oral argument by appellant’s able attorneys and all of the points raised, urged, and discussed by them. We find no reversible error in this case.

The judgment will therefore be affirmed.

DAVIDSON, P. J., dissents.  