
    GUMPERT v. STATE.
    (No. 6125.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1921.
    Rehearing Denied March 16, 1921.)
    1. Forgery <&wkey;28(3) — No purport clause necessary in indictment for. passing forged check.
    In an indictment for passing a forged check, ■which is an ordinary commercial instrument, no purport clause is necessary.
    2. Forgery <&wkey;32— Not necessary to allege that indorsement of forged check passed was false.
    A check is complete without indorsement, so that an allegation that the indorsement thereon .was false is unnecessary in an indictment for passing a forged check.
    3. Indictment and information &wkey;>120 — Allegation of indorsement of forged check does not invalidate indictment.
    In an indictment for passing a forged check, an allegation that the check bore an indorsement was surplusage, but it did not render the indictment insufficient, even though the in-dorsement thereon was genuine.
    4. Forgery &wkey;j32 — Guilty knowledge is essential to uttering forged instrument.
    Guilty knowledge that the instrument was forged is an essential element of the offense of passing a forged instrument under the statute as it was before the enactment of the statute.
    5. Forgery <&wkey;l6 — Forged instrument passed may have been made by defendant or another.
    The forged instrument, the passing of which is made an offense by Pen. Code 1911, art. 937, includes a forged check made either by the person passing it or by another.
    6.-Indictment and information <@=387(3) — indictment held to allege offense anterior to presentment.
    An indictment, presented on August 31st, which charged the offense of passing the forged instrument to have been committed on July 31, and anterior to the presentment, is not subject to attack on the ground that it fails to charge facts showing that the offense was committed anterior to the presentment.
    7. Criminal law &wkey;>l 168(1) — Lowest penalty on plea of guilty precludes questioning sufficiency of evidence.
    Under Code Or. Proc. 1911, art. 566, requiring submission to the jury after plea of guilty to determine the amount of the punishment for a felony where there is discretion as to the punishment, the assessment of the lowest punishment by the jury precludes questioning the sufficiency of the evidence, at least where there is legal evidence to support the judgment. f
    
    8. Criminal law <&wkey;l I44( 13) — Without statement of facts, evidence on plea of guilty presumed sufficient.
    On appeal from the sentence imposed after verdict of the jury on plea of guilty, it is .presumed, in the absence of a statement of facts, that there was evidence before the court to sustain the judgment.
    Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    L. W. Gumpert was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    James E. Yeager, of Waco, for appellant.
    C. M. C'ureton, Atty. Gen., and Walace Hawkins and Tom L. Beauchamp, Asst. Attys. Gen., for the State.
   MORROW, P. J.

Conviction is for passing a forged instrument and punishment fixed at confinement in the penitentiary for a period of two years.

The instrument declared on was set out in the indictment thus:

“Italy, Texas, July 31,1920. No.-. The First National Bank, 88-665: Pay to bearer Roy Miller $15.85, fifteen and st/ioo dollars
“S. L. Morgan.”

Indorsed on the hack thereof: “Roy Miller.”

It was charged that—

The appellant “did willfully, knowingly, and fraudulently pass as true to one Jodie Brooks a false and forged instrument in writing, which had theretofore been made without lawful authority and with intent to defraud, and was then of the tenor following, * * * and which said instrument in writing the said L. W. Gumpert then and there well knowing to be false and forged, he, the said B. W. Gum-pert, did pass the same as true, with intent to injure and defraud.”

In the motion to quash and in arrest of judgment the indictment was assailed upon various grounds, none of which, in our opinion, were sound. The check, being an ordinary commercial instrument no purport clause was necessary. Howard v. State, 37 Tex. Cr. R. 494, 36 S. W. 475, 66 Am. St. Rep. 812; Branch’s Criminal Law, § 379. The cheek was complete without the indorsement. Branch’s Ann. Tex. Penal Code, §§ 1397, 1409; Hennessy v. State, 23 Tex. App. 354, 5 S. W. 215; Bishop’s New Crim. Procedure, vol. 3, § 410.

No attempt was made to charge that the instrument had been altered by making thereon a false indorsement. Strang v. State, 32 Tex. Cr. R. 228, 22 S. W. 680; Carter v. State, 55 Tex. Cr. R. 46, 114 S. W. 839.

The instrument which was the subject of the forgery, under the allegations, was a check. In alleging that it bore the indorsement “Roy Miller,” the pleader put upon it an unnecessary descriptive averment, but did not thereby render the indictment bad. Passing a cheek which was known to be forged and which was passed with fraudulent intent would constitute an offense whether the indorsement be forged or genuine. It is possible that, in describing the check as being indorsed in the manner stated, an unnecessary burden was assumed by the state to prove that the forged check passed bore the indorsement mentioned. This question, however, does not arise. The statute denouncing the passing of a forged instrument is not susceptible of the construction that a conviction would result if the instrument was knowingly passed without knowledge that it was a forgery. Guilty knowledge is an essential element in the offense. Such was the law at the time the statute was passed, and such is the construction that has been uniformly given. Wharton’s Criminal Evidence, vol. 1, § 35, p. 138, note 3. . ..

The terms “such forged instrument,” used in the passing statute (Pen. Code 1911, art. 937), would include a forged check made by either the person passing it or by another. The indictment was not invalid.

Eor the first time on appeal the indictment is áttacked upon the ground that it fails to charge the facts showing that the offense was committed. “anterior to the presentment of the • indictment.” The indictment was presented on the 31st day of August, which was during the June term of court, and charged the offense to have been committed on the 31st day of July, and “anterior to the presentment of the indictment.” We think the point is not meritorious. See Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Branch’s Crim. Law, §§ 883, 888, 905; Code of Criminal Procedure, arts. 576, 597, 451.

Upon plea of guilty the statute (article 566, Code of Criminal Procedure) requires, in a case of felony where there is a discretion as to the term of punishment, that evidence shall be submitted to enable the jury to determine the amount of .the punishment. In such a case, where the jury hearing the evidence assesses the lowest punishment, the sufficiency of the evidence is not open to question. Doans v. State, 36 Tex. Cr. R. 468, 37 S. W. 751. .At least, such is the case where there is legal evidence before the jury to support the judgment. Woodall v. State, 58 Tex. Cr. R. 515, 126 S. W. 591.

In the instant case, in the absence of a statement of facts, the presumption is indulged that there. was evidence .before the court to support the judgment

Finding no error, the judgment is affirmed.

HAWKINS, J., not sitting. 
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