
    DECHERD v. STATE.
    (No. 9762.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.
    Rehearing Denied April 28, 1926.)
    1. Forgery <&wkey;>27 — Indictment for ordinary forgery, alleging act was done “with intent to injure or defraud,” sufficiently charges intent tinder statute (Pen. Cod® 1925, art. 979; Vernon’s Ann. Code Cr. Proe. 1916, art. 454).
    Indictment under general statute denouncing forgery (Pen. Code 1925, art. 979), which alleges act was done “with intent to injure or defraud,” sufficiently charges intent, in view1 of Vernon’s, Ann. Code Cr. Proe. 1916, art. 454, and it is unnecessary to further follow language of the statute.
    2. Forgery <&wkey;27 — Indictment for forgery of release of vendor’s lien, alleging intent to defraud generally, sufficiently charged intent ■ (Pen. Code 1911, art 947 [now Pen. Code 1925, art. 1006]; Pen. Code 19(1, art. 951 [now Pen. Code 1925, art. 1010]).
    Indictment for forging release of vendor’s lien,, alleging intent to defraud generally, sufficiently charged intent, since Pen. Code 1911, art. 947 (now Pen. Code 1925, art. 1006), under which action was brought, which names several specific intents, concluding “or with any fraudulent intent whatever,” does not contravene Pen. Code 1911, art. 951 (now Pen. Code 1925, art. 1010), which specifies indictments for such offenses, need only allege intent to defraud generally.
    3. Forgery t&wkey;>34(9) — Variance between forged release of vendor’s lien describing note, secured by lien, as "payzb«'¡ie” to V., and indictment spelling it.“payable,” is immaterial.
    In prosecution for forging release of vendor’s lien, which secured note payable to V., the vendor, where the forged release described the note as “payzbiie” to V., and the indictment spelled it “payable,” the variance was immaterial, and1 release was properly admitted.
    4. Criminal law <&wkey;369'(4) — Where defendant forged a release of vendor’s lien and note secured by the lien, and delivered them, forged note was admissible in prosecution'for for- ' gery of release.
    Where defendant, having forged release of vendor’s lien and copy of note secured by the lien, delivered them to C. simultaneously, and received payment therefor, in prosecution for forging release the forged note was admissible; the acts being so interrelated as not to be within rule excluding extraneous crimes.
    5. Forgery <&wkey;>38— Evidence that defendant was paid for forged release of vendor’s lien and forged copy of note, secured by lien, was properly admitted in prosecution for forging release.
    .In prosecution for forging release of vendor’s lien, that C., to whom defendant delivered the forged release and forged copy of note secured by the lien, paid defendant for them at time of delivery was properly received in evidence as bearing upon intent.
    6. Criminal law &wkey;>406(7) — Letter admitting appropriation to own use of money received upon delivery of forged release of vendor’s lien and forged copy of note, secured by the lien, was admissible in prosecution for forging release.
    In prosecution for forging release of vendor’s lien, defendant’s letter to C., by whom he had been paid upon delivery of'forged release and forged copy of note, secured by the lien, admitting appropriation of money to his own use was properly admitted as bearing upon intent.
    7. Forgery «&wkey;39 — Genuine vendor’s note was admissible in prosecution for forged release of vendor’s lien, which secured the note, to show no genuine release had been executed.
    In prosecution for forging release of vendor’s lien, where defendant had forged release and also copy of note, secured by the lien, the genuine vendor’s note was admissible to show that it was unpaid, and that no genuine release thereof bad been executed.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    E. A. Decherd was convicted of forgery of a release of a vendor’s lien, and he appeals.
    Affirmed.
    See, also, 283 S. W. 171.
    A. S. Broadfoot, A. S. Baskett, and D. L. Whitehurst, all of Dallas, for appellant.
    R. G. Storey, of Dallas, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr. Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

Forgery is the offense; punishment fixed at confinement in the penitentiary for a period of six and one-half years.

It is charged in the indictment that the release of a vendor’s lien from S. T. Tubbs to Morgan Callaway, Jr., was forged. The release is set out in the indictment, and states, in substance, that on the 1st day of July, 1921, George T. Vickers conveyed by deed to Henry Dannelly lot 6, block 1, of R. B. Parks subdivision of block 1405 of the city of Dallas ; that in the deed there was retained a vendor’s lien ’ to secure $1,250 purchase money, which was evidenced by a note for that sum, dated July, 1921, payable to George T. Vickers. The instrument recites that the note has been paid to S. T. Tubbs, the legal owner, and that the lien securing it is released. The instrument, dated July 5, 1924, purports to bear the signature of S. T. Tubbs, and to have been acknowledged on the same day before 33. A. Decherd, a notary public of Dallas county, Tex. That this release was forged by him was proved both by the confession of the appellant and by the testimony of other witnesses.

Dr. Morgan Callaway, Jr., was a resident of the city of Aus'tin. He was a professor of English in the University of Texas. Appellant Rad, in former years, been a student in the university and in after years had had dealings with Dr. Callaway. Upon the request of the appellant, Dr. Callaway went to the Driskill Hotel in Austin, where they met a man, whom the appellant introduced as Wisdom. A note payable to George T. Vick-ers for $1,250, dated July 1, 1921, signed by Henry Dannelly, was exhibited to Dr. Calla-way. This note was introduced in evidence, and, according to its purport, was secured by a vendor’s lien upon lot 6, block 1, of E. B. Parks subdivision of block 1405 of the city of Dallas, purported to have been transferred by George T. Vickers to S. T. Tubbs, and by him transferred to C. E. Wisdom. This note and the release described in the indictment were delivered to Dr. Callaway, in consideration for which he gave a check for $1,080, payable to S. T. Tubbs. This check, and the proceeds thereof, were collected and used by the appellant, and the purported note for $1,250 was forged by him.

The validity of the indictment is attacked upon the ground that, in charging the intent with which the forgery was committed, it failed to use the language contained in the statute. The general statute denouncing forgery contains these words:

“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.” Article 979, P. C. 1925.

Uniformly, the courts have held that, when charging the intent in ordinary forgery, it is unnecessary to go further than to use the language of the general statute which we have quoted, namely, “with intent to injure or defraud.” See article 454, 2 Vernon’s Tex. Crim. Stat. vol. 2; Johnson v. State, 33 S. W. 231, 35 Tex. Cr. R. 271.

Article 947, P. O. (New [1925] art. 1006), upon which the present prosecution is founded, was enacted in 1876. It has special reference to forgery of land titles, and declares guilty of forgery every person who falsely makes, alters, forges, or counterfeits, or causes or procures such to be done, “with the intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title, to lands or any interest in lands, or to prosecute or defend a suit, or aid or assist any one else in prosecuting or defending a suit with respect to lands, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owners of lands, or with any fraudulent intent whatever, shall be deemed guilty of forgery.”

It is the contention of the appellant that the indictment is invalid, in that it fails to set forth by way of averment the specific intent with which the false instrument was made. Prom the indictment in question we take the following quotation:

“ * * * Then and there, without lawful authority, and with intent to injure and de^ fraud, willfully and fraudulently, did make and forge a false instrument in writing, purporting to be the act of another, which false and forged instrument did- then and there relate to and affect an interest in land in the said state of Texas, and was then and there so falsely made by the said E. A. Decherd in such manner that, if the same were true and genuine, it would have affected and transferred the title to certain land in the said state of Texas, and which said false instrument purports to be a release of vendor’s lien from S. T. Tubbs to Morgan Callaway, Jr., and is of the following tenor,” etc.

It is to be noted that the pleader, in charging the intent, has used general terms which are, in substance, those used in the statute, which says: “Or in any way injure or with any fraudulent intent whatever.” We note that in Willson’s Texas Criminal -Forms (form 43) p. 221, the form of indictment under this statute is the same as that used in the present instance, and reference made to numerous cases. Among them is Ham v. State, 4 Tex. App. 645, in which the indictment in the particular in question was like that in the instant ease. See, also, Francis v. State, 7 Tex. App. 501; Johnson v. State, 9 Tex. App. 249. The opinion in Ham v. State, supra, was rendered in the year 1878, since which time there have been several revisions of the statute without change in the article now under consideration in the particular mentioned. Under these conditions thé presumption of legislative sanction of the judicial interpretation prevails. See Lewis v. State, 127 S. W. 808, 58 Tex. Cr. R. 351, 21 Ann. Cas. 656, and precedents there cited. Moreover, it is to be noted that in the chapter enacted at the sa-me time as article 947, old (article 1006, new) is found article 951, old, (article 1010, new), in which it is said:

“ * * * And it shall only be necessary in an indictment under this chapter to state with reasonable certainty the act constituting the offense, and charge, in connection .therewith, in general terms, the intention to defraud, without naming the person or persons it was intended to defraud.” ■

It is conceded by the appellant that this court, in several cases of comparatively recent date, has upheld an indictment couched' in the same terms as -those criticized in the present instance. See Thompson v. State, 152 S. W. 893, 69 Tex. Cr. R. 31; Weber v. State, 180 S. W. 1082, 78 Tex. Cr. R. 268; Roberts v. State, 211 S. W. 219, 85 Tex. Cr. R. 196. In these eases the attach upon the indictment was not in the express terms of that in the present instance.

Appellant cites numerous precedents supporting the general proposition that words of the statute descriptive of the act condemned, and proof of which is essential, may not he omitted, but must be set up by averment. We are of the opinion that, for the reasons hereinabove' stated, the indictment in the present case should be upheld; and we are also of the opinion that the precedents upholding it are not at variance with the general principles upon which appellant relies touching the sufficiency of the indictment; that in stating the intent in the indictment, under the statute in question, the averment is sufficient which charges that the act was without lawful authority and with the intent to defraud. This view finds support in the language of the statute, wherein it is said: “Or in any way injure, obtain the advantage of, or prejudice the rights • or interest of, the true owners of lands, or with any fraudulent intent whatever,” and in article 951 (new article 1010), which is quoted above.

In the release introduced in evidence, the $1,250 note is described as “payzbiie” to George T. Vickers, whereas, in the indictment it is spelled “payable.” The objection to the release upon the ground of variance was overruled, and, we think, correctly so. The alleged variance was immaterial. Illustrations will be found in numerous cases cited by Mr. Branch in his Ann. Tex. P. C. § 190. Among them are the following: Eight was spelled “eiget” ; drink was spelled “dring” ; appropriate was spelled “appropiate” ; twenty was spelled “tenty”; carnally was spelled “canally”; street .was spelled “stree”; money was spelled “monet.” These illustrations may be extended. See, also, Stuart v. State, 124 S. W. 656, 57 Tex. Cr. R. 592, wherein “strick” was used for strike; Albertson v. State, 208 S. W. 923, 84 Tex. Cr. R. 574, wherein “bécome” in the instrument intro duced was spelled “becoke”; Gill v. State, 208 S. W. 926, 84 Tex. Cr. R. 531, wherein the word “corporeal” was spelled “carporeal” in the indictment; Garza v. State, 222 S. W. 1105, 87 Tex. Cr. R. 537, wherein the'word “pistol” was spelled “pistle”- in the complaint and information; Coffey v. State, 198 S. W. 326, 82 Tex. Cr. R. 57, wherein “February” was spelled “Rebruary.” It is only a material variance that is available. Underhill’s Crim. Ev'. (3’d Ed.) § 627.

The receipt of the note for $1,250, described in the release, was opposed upon the ground that it offended against the rule excluding extraneous crimes. The evidence shows that the note and release were delivered at the same time to Dr. Callaway; that upon the receipt of same Dr. Callaway paid $1,0S0; that the note was in fact forged by the appellant.. The transactions are deemed so interrelated as.not to be within the inhibi-tlon against the receipt of evidence of collateral offenses.

The fact, that Dr. Callaway paid to the appellant $1,080 at the time of the delivery of the forged release and the forged note was, we think, properly received in evidence, as was also the letter which the appellant had written to Dr. Callaway in which he admitted that he had appropriated the check for $1,080 to his own use, and not to the payment of the note. These matters bore upon the issue of intent of the appellant. Upon the same principle, the note for $1,250, which was executed by Henry Dannelly and wife to George T. Vickers, which was shown to have been the genuine note and lien upon the property described in the release, which note was never owned by either the appellant or Tubbs, we think was also properly received upon the issue of intent. Hennessy v. State, 5 S. W. 215, 23 Tex. App. 340 ; 5 Rose’s Notes on Tex. Rep. p. 615.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORB, J.

We quoted in our former opinion a part of article 1010, P. C. 1925, which lays down a legislative measure of what is necessary in an indictment for any offense set out in chapter 2, title 14, of said Penal Code. Under same two essential elements are specified for such indictments, viz. a reasonably certain description of the act constituting the offiense, and also in connection therewith an allegation in general terms of an intent to defraud. While article 1006 of said Penal Code names many specific acts, the doing of which constitute forgery, and names several specific intents, concluding with the general expression “or with any fraudulent intent whatever,” we do not think the enumerations in said article contravene or affect the broad direction of article 1010 as to indictments, which is above referred to. We are still of opinion that the indictment in this case is sufficient without further allegation as to the intent of the accused.

Appellant urges that the case of Ham v. State, 4 Tex. App. 645, cited in our opinion as upholding a similar indictment to the one herein, was not for any of the offenses set out in article 1006, supra, but for a violation of the law of uttering forged instruments, which is article 1008 of said 1925 Penal Code. While this is true, an inspection of article 1008 discloses the fact that, after enumerating the acts of uttering or passing forged instruments therein forbidden, it says:

“With the intent mentioned in article 1006 of this chapter, or with any other fraudulent intent whatsoever,”

—thus making it plain that the law regarding the allegation of intent under the article whose violation was charged in the Ham Case, supra, is the same as that of article 1006, in so far .as the. question of intent is concerned. If there was no need for an allegation of particular intent in the Ham Case under article 1008, there is no need for an allegation of particular intent in the instant case under article 1006.

We have examined the additional authorities cited by appellant, but none of them seem to tie in point. '

We do not think we can add to what was said in regard to appellant’s objection to the admission of the alleged forged release in evidence. The original instrument is sent up with the record, and to us seems clearly to evidence a case of misspelling. Same shows plainly that the maker thereof intended to write the word “payable,” but struck the letter “z” instead of the second “a,” and also that he first put another “a” after the letter “b,” and then wrote the letter “1” upon and over said last named “a.” It is also perfectly evident that he wrote the date 1922, and then erased, or partially erased, the last figure “2,” and wrote the figure “1” above it.

We think the introduction of the genuine vendor’s lien note for $1,250, the release of which formed the subject of the forgery in the instant case, was warranted as part of the state’s case in showing that the genuine note had not been paid, and that no genuine release of same had been executed.

There are a number of other questions which are raised, all of which were considered on original presentation, but not deemed of sufficient materiality to call for discussion. We have found no reason to change our conclusion as reached on the original hearing, and the motion for rehearing will be overruled. 
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