
    SMITH v. STATE.
    (No. 4550.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Indictment and Information &wkey;jl25(42)— Duplicity — Forgery.
    Under Pen. Code 1911, art. 937, providing punishment for any person who shall “pass” or “attempt to pass” a forged instrument, both an attempt and a passing may be charged conjunc-tively in the same count; both being embraced in the same definition and made punishable in the same manner.
    2. Indictment and Information <&wkey;125(42) —Joindeb of Offenses.
    The passing of a forged instrument includes an attempt to pass, and¿ even if they were distinct offenses, could be joined in a single count.
    3. Indictment and Infobmation <&wkey;119 — Redundant Allegations — Surplusage.
    Where a count of an indictment charges an attempt under Pen. Code. 1911, art. 937, to pass a forged instrument on a certain person, and also charges the completed offense, that he “did pass” it, without stating whom he passed it on, the latter p.art is fatally defective, and should be regarded as surplusage, and not part qf the’ indictment.
    4. Cbiminai, Law <§^970(6) — Indictment — Motion to Quash — Waiver.
    It is too late after verdict on a motion to arrest judgment to complain that an indictment is bad for duplicity.
    5. Criminal Law <&wkey;1095 — Bills of Exception-Time foe Filing — Striking Out.
    Where appellant was granted 30 days’ additional time from the time allowed by the statute for filing bills of exception, bills filed after that time will be stricken out on motion.
    Appeal from Criminal District Court, Dallas County; O. A. Pippen, Judge.
    W. M. Smith was convicted of forgery, and be appeals.
    Affirmed.
    John A.. Ballowe and A. S. Baskett, both of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gem., for tbe State.
   PRENDERGAST, J.

This is an appeal from a conviction for knowingly attempting to pass as true a forged note. Tbe prosecution was under article 937, P. C., which is:

“If any person shall knowingly pass as true, or attempt to pass as true, any such forged instrument in writing as is mentioned and defined in the preceding articles of this chapter, he shall be punished by imprisonment in the penitentiary not less than two nor more than five years.”

Tbe indictment was in three counts. Tbe conviction was under tbe second, which is as-follows: That appellant on December 6, 1916, in Dallas county, Tex., “did willfully, knowingly, and fraudulently attempt to pass as true to one Joe Goldberg a false and forged instrument in writing, which had theretofore been made without lawful authority, and with intent to defraud.” (Here follows a copy of the alleged forged note under an allegation of tenor; it is unnecessary to copy tbe note. The indictment then proceeds:) “And which said instrument in writing tbe said W. M. Smith then and there well knowing to be false and forged, be (the said W. M. Smith) did pass tbe same as true, with intent to injure and defraud,” concluding with “against, tlie peace and dignity of tbe state.”

Tbe court submitted to tbe jury solely the question of an attempt to pass tbe note upon Goldberg. He did not submit tbe actual pass.-ing of it on any one. Appellant made mo motion to quash tbis count in tbe indictment. After tbe trial, and even after be bad filed bis motion for a new trial, be for the first time filed a motion in arrest of judgment, claiming that said count of tbe indictment was vague, indefinite, and uncertain, and tbe allegations repugnant in that said count, in tbe first part, averred that be did attempt to pass as true tbe said forged note to Goldberg, and in the concluding part of said count it charged that’ be did pass it as true.

Tbe court’s action in overruling bis motion in arrest of judgment was correct, and presents no error.for several reasons:

1. It will be .noted that said article 93.7 prescribes two separate and distinct ways in Which that law ’may -be, violated, and therein prescribes tbe same punishment for each. It does not prescribe two separate and distinct offenses in tbe sense that they both cannot be alleged in one count. It is unquestionably settled in this state that:

“Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count.”

This is a quotation from Judge White’s Ann. O. O. P. p. 297, where he cites the decisions of this court to that effect. He also lays down exactly the same proposition in section 883, p. 286, citing many decisions of this court. To exactly the same effect is the proposition laid down in 2 Vernon’s Orim. Stats, p. 244, and section 508, 1 Branch’s Ann. P. C., in both of which a large number of cases supporting the text are cited.

It might be contended that attempting to pass a forged instrument is a distinct offense from actually passing it, but even if that was conceded it would not make the count of the indictment herein invalid, because this court has many times and in many decisions distinctly held, as was held in Nicholas v. State, 23 Tex. App. 326, 5 S. W. 241:

“When offenses are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper” — citing State v. Randle, 41 Tex. 292 ; State v. Edmondson, 43 Tex. 162.

See, also, in point, Hickman v. State, 64 Tex. Cr. R. 162, 141 S. W. 973; Cabiness v. State, 66 Tex. Cr. R. 416, 146 S. W. 934; Green v. State, 60 Tex. Cr. R. 452, 147 S. W. 593.

The completed passing of a forged instrument necessarily implies an attempt to do so; hence on this point the indictment was not fatally defective.

2. There is another principle thoroughly established and applicable herein, and which is as laid down by Judge White as follows: Redundant allegations and those which are in no manner descriptive of the offense and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the defendant, and are no detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. This principle has been announced and applied all the time in this court down to this date. Mr. Branch states the proposition thus:

“If not descriptive of that which is legally essential to the validity of the indictment, * * * unnecessary words or allegations may be rejected as surplusage” — citing a large number of cases exactly in point. Section 497, Branch’s Ann. P. C.

In the application of this principle attention is again called to the count of the indictment herein. The first part of it is a complete indictment and charge against appellant in, that he did attempt to pass as true to Goldberg said false instrument. Then in attempting to charge the completed offense —that he did pass it — that part is fatally defective in that it does not charge upon whom appellant did pass the instrument, whether Goldberg or some other person. In other words, it omits to state on whom he passed it. And therefore that feature of that count is wholly without effect, and can and should be regarded as surplusage, and in no way affecting that part of the count which charges an attempt to pass the instrument on Goldberg.

3. There is another ground well established applicable herein to tins effect, that it is too late after verdict on a motion to arrest the judgment to hold the indictment bad and quash it. This is expressly held in many decisions of this court. We cite some of them only: Coney v. State, 2 Tex. App. 62; Dalton v. State, 4 Tex. App. 335; Tucker v. State, 6 Tex. App. 251; Rumage v. State, 55 S. W. 64; Hickman v. State, 64 Tex. Cr. R. 162, 141 S. W. 973; Cabiness v. State, 66 Tex. Cr. R. 416, 146 S. W. 934; Green v. State, 66 Tex. Cr. R. 452, 147 S. W. 593. This court in the Tucker Case, supra, quoting from 1 Bishop, Cr. Proc. § 443, holds:

“Duplicity in an indictment is the joinder of two or more distinct offenses in one count. 1 Bishop’s Cr. Proc. 432. The same learned author says: ‘In matter of principle, it would seem to be a defect of such mere form as ought to be deemed cured by the verdict, because the objection is one which relates simply to the convenience of the defendant in making his defense, while by not taking the objection be seems to have suffered no inconvenience, and therefore to have waived it.’ Id. § 443. Mr. Arehbold, in writing of the English practice, lays down the same_rule. 1 Arch. Cr. PI. & Mv. (13th London Ed.) 54. Mr. Wharton says : ‘Duplicity in criminal cases may be objected to by special demurrer, perhaps by general demurrer, or the court in general, upon application, will quash the indictment; but it is extremely doubtful if it can be made the subject of a motion in arrest of judgment, or of a writ of error, and it is cured by a verdict of guiltj- as to one of the offenses, and not guilty as to the other.’ 1 Whart. Cr. Law, § 395.”

The term of court at which this trial occurred, both by law and as a matter of fact, continued more than 8 weeks. The court granted appellant 30 days’ additional time from the 30 days allowed by the statute for filing bills of exception from the time he overruled his motion for new trial. Appellant filed no bills within that period, but after the time expired did file some. They were too late. The state’s motion must therefore be granted to strike them out and not consider them. The evidence was sufficient to sustain the conviction, and both the jury and the trial judge so found and held.

The judgment is affirmed. 
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