
    SIMON v. STATE.
    (No. 8519.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Forgery <§=329(1) — Indictment for forgery of undated check held not assailable for lack of innuendo averments.
    In view of statutory definition of forgery, indictment for forgery of undated check 7ield not assailable for lack of innuendo averments, since check without date would, if genuine, have created pecuniary obligation.
    2. Forgery <§=>29(I) — Indictment for forgery of check payable to order of cash held good.
    Indictment for forgery of check payable to order of cash, held not assailable for lack of innuendo averments, such check being in legal effect payable to bearer and sufficient to create liability upon purported holder.
    Appeal from District Court, Panola County; Chas. L. Brachfield, Judge.
    Aaron Simon entered a plea of guilty to forgery, and suspended sentence was denied. He appeals.
    Affirmed.
    Long & Strong and H. N. Nelson, all of Carthage, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant entered a plea of guilty to forgery, making application for suspended sentence. He was awarded two years in the penitentiary, suspended sentence being denied. No attack had been made upon the indictment previous to trial, but by motion in arrest of judgment it was assailed upon the ground that the instrument alleged to have been forged is not the subject of forgery without innuendo averments. The instrument described in the indictment reads:

“Carthage, Texas 192 Guaranty State Bank, pay to the order of Cash, $15.00 Dollars Jack Wilson.”

No extrinsic averments are found in the indictment as to the date of the check or the payee. Were they necessary? It is not indispensible that an instrument to be the subject of forgery be dated. The instrument here declared on, if genuine, would have created a pecuniary obligation upon the maker, though it bore no date. Boles v. State, 13 Tex. App. 650; Dixon v. State (Tex. App.) 26 S. W. 500. Our statute defining forgery reads:

“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.” Vernon’s Ann. Pen. Code 1916, art. 924.

Supposing the check to have been a genuine instrument, what was its legal effect? A check, although the name of the payee is left blank, may be the subject of forgery, because, if genuine and delivered in such condition, it carries with it authority for the holder to write in the name of the party entitled to receive the money called for by it. 1 Randolph on Commercial Paper, § 185; 1 Daniel on Negotiable Instruments, § 145; People v. Gorham, 9 Cal. App. 341, 99 P. 391; also an instrument payable only to “bearer” is the subject of forgery. Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463. One of the tests to determine whether a certain instrument may be the. subject of forgery is would it create a pecuniary liability upon the purported maker if genuine? Scott v. State, 40 Tex. Cr. R. 105, 48 S. W. 523. We think there can be no doubt that such an instrument, as the check described, if executed and delivered by Wilson, would, in the hands of the holder of it, show liability of the maker thereon. It purports upon its face to be a direction from Wilson to the bank to pay to the presenter or holder thereof the amount of money called for in the check; in other words, in legal effect, it is a check payable to the “bearer” thereof. 1 Daniel on Negotiable Instruments, § 99,1 Randolph on Commercial Paper, § 150. So believing, we hold the indictment good.

The judgment is affirmed.  