
    SMITH v. STATE.
    (No. 4449.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    Forgery <⅞^>26 — Indictment—Sufficiency.
    An indictment for forgery alleged: That defendant, on October 20, 1916, without lawful authority, and with intent to injure and defraud, did willfully and • fraudulently mqke a certain false instrument in writing, which said false instrument in writing was to the tenor following: November 20, 1916. Please let G. T. have articles he desires and put on my bill and oblige. M. L. B. That the foregoing false instrument in writing was presented to one I. B., an employs of A. H. & Co., a corporation engaged in mercantile business in the city -of D., Tex., to be honored by the company, and that said false instrument in writing wouid, if true, have created a pecuniary obligation on the part of M. L. B. Held, that such indictment was fatally defective.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 61.]
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. H. Smith was convicted of forgery, and he appeals.
    Reversed, and cause ordered dis-. missed.
    A. S. Baskett, of Dallas, for appellant. E. B. Heridricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of forgery and assessed the lowest punishment.

The indictment was in three counts. On appellant’s motion, the first two were quashed by the court. The third, outside of the usual1 and necessary preliminary and concluding allegations, is as follows:

That appellant, on October 20, 1916, “without lawful authority and with intent to injure and defraud, did willfully and fraudulently make a certain false instrument in writing, which said false instrument in writing is to the tenor following: November 20, 1916. Please let George Thomas have articles he desires and put. on my bill and oblige. M. L. Bartholomew, 614 N. Pearl St. That the foregoing false instrument in writing was presented to one Isadore Benno, an .employé of A. Harris & Co., a corporation engaged in mercantile business in the city of Dallas, Tex., to be honored by the said A. Harris & Co. That the said false instrument in writing would, if the same were true, have created a pecuniary obligation on the part of M. L. Bartholomew.”

Appellant made a motion to quash this count on these grounds: (a) It is ’duplici-teras and charges two offenses, to wit, forgery and passing as true a forged instrument in the same count, (b) The alleged forge'd instrument shows, on its face that it is not a subject of forgery, and there are no innuendo-allegations explaining it so as to render it a subject of forgery, (c) The alleged forged instrument bears a date subsequent to the date of the return of the indictment, and there are no innuendo allegations explaining it or showing that it .was executed before the return of the indictment.

The indictment was returned and filed in the lower court November 7, 1916. The majority of this court are of the opinion that sai'd indictment is fatally defective, under the claimed authority of Womble v. State, 39 Tex. Cr. R. 24, 44 S. W. 827; Huckaby v. State, 45 Tex. Cr. R. 581, 78 S. W. 942, 108 Am. St. Rep. 975; Cagle v. State, 39 Tex. Cr. R. 112, 44 S. W. 1097; Crawford v. State, 40 Tex. Cr. R. 345, 50 S. W. 378; Lynch v. State, 41 Tex. Cr. R. 211, 53 S. W. 693; Black v. State, 42 Tex. Cr. R. 586, 61 S. W. 478. (This writer does not concur in ‘such holding.)

We see no necessity of particularly dismissing the question. Under the majority’s views, the cases cited would show what allegations are necessary to make a good indictment.

As the case is to be reversed, we call attention to the alleged forged order in some other particulars. It has been sent up to this court under a proper authentication for the inspection of the court so that we could see the name signed thereto. We have examined it and the signature, and in our opinion the name is spelled Bartholomew, and not Bartholomew; that instead of the letter “t” in spelling the name a “p” is used.

This writer also calls attention to the word in said order which doubtless is “articles.” The “t” therein is not crossed nor the “i” dotted, and it seems that the first syllable of this word is “are.” Neither is the letter “i” in the word “oblige” dotted. These matters escaped attack in the court below. In the opinion of this writer, it would be unnecesr sary to explain these omissions; but as the case is to be reversed and much more particularity is now required than formerly, he calls attention to them, so that if another indictment is preferred the pleader can explain them to prevent another reversal in case of conviction.

It would serve no useful purpose for this writer to cite the statute and decisions thereunder which would, in his opinion, unquestionably show that this indictment is a good one and is not defective in any material particular. He may later do so. He also thinks the above cases cited by the majority are inapplicable.

In accordance with the opinion of the majority, the judgment is reversed, and the cause ordered dismissed.

As it may be necessary for the court below to have said alleged forged order, it is the further order of this court that the clerk send the said original order to the clerk of the court below and procure his receipt therefor. 
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     