
    SMITH v. STATE.
    (No. 11064.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Forgery —Statute prohibiting possessing writing, making of which is “offense,” held intended to apply to possessing forged writing with intent to pass same as true (Pen. Code 1925, art. 993).
    Pen. Code. 1925, art. 998, providing punishment for any person knowingly having in possession any instrument in writing, the making of which is an offense, with intent to use or pass the same as true, held) intended to apply to • possessing a forged instrument with intent to pass it as true, in view of previous history and interpretation of statute.
    2. Statutes <&wkey;24i(l) — Where language of criminal statute is ambiguous, interpretation acquiesced in for many years becomes established law.
    Where language of criminal statute is am'biguous; the construction and interpretation of the statute when it first goes into operation, sanctioned by long acquiescence on part of Legislature and courts, becomes established law.
    Commissioners’ Decision.
    Appeal from District Court, Uvalde County; L. J. Bracks, Judge.
    J. M. Smith was convicted of unlawfully and knowingly having in his possession a false and forged instrument in writing, with the intent to pass the same as true, under Pen. Code 1925, art. 998, and he appeals.
    Affirmed.
    Will Glover, of Uvalde, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was indicted and convicted for unlawfully and knowingly having in his possession a false and forged instrument in writing, with the intent to pass the same as true. The prosecution was under article 998, P. C. 1925, which reads as follows:

“If any person shall knowingly have in his possession any instrument of writing, the making of which is by law an offense, with intent to use or pass the same as true, he shall be confined in the penitentiary not less than two nor more than five years.”

The contention is made that the above article does not define the offense set out in the indictment herein, and that said article is so indefinitely framed and of such doubtful construction that it cannot be understood, and especially that it cannot be applied to the possession of a forged instrument and has no application to the offense of forgery as defined by the Penal Code.

The article in question was passed by the Regular Session of the Legislature of 1858, c. 121, and is part of a law “supplementary to and amendatory of an. act entitled ‘An Act to adopt and establish, a Penal Code for the state of Texas,’ approved 28th August, 1856.” It was set into title 16, c. 1, relating to the following subject: “Forgery, and other offenses affecting written instruments.” It has since said time occupied a place in the chapter pertaining to forgery and other offenses affecting written instruments. It was re-enacted as article 544, then as article 939, and passed into the 1925 Penal Code as article 998”. It has, since its existence, been placed in a chapter of the Penal Code with articles dealing with the subject of forgery. The term “making of which is by law an offense” has, we think, been interpreted and regarded by the bench and bar to be a clause relating and having reference to the offense of forgery. As far back as November, 1895, a conviction under this statute was affirmed in an opinion by Judge Hurt, and we think there can be no doubt that, at least impliedly, trial and appellate courts have given this article the construction and meaning claimed by the state for it in this case. 2 Lewis’ Sutherland, Statutory Construction, pp. 886, 887, lays down the following rule of statu-, tory construction applicable, we think, to the instant case:

, “A contemporaneous construction is that which it receives soon after its enactment. This after the lapse of time, without change of that construction by legislation or judicial decision, has been declared to be generally the best construction. If there is ambiguity in the language, the understanding of the application of it when the statute first goes into operation, sanctioned by long acquiescence on the part of the Legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. A construction under such circumstances becomes established law. * * * A construction of a statute that has been acted upon by the bench and bar for nearly half a century should not be disturbed. The common consent and opinion of the legal profession on a question of the construction and practical operation of a statute were held tó be of persuasive force. A construction of a Constitution, ■if nearly contemporaneous with its adoption, and followed and acquiesced in for a long period of years afterwards, is never to be lightly disregarded, and is often conclusive.”

While the terms of the statute in question are not as plain and certain as might be desired, we believe that its language, together with nearly 75 years of acquiescence in the interpretation herein given it, is sufficient to justify us in declaring its meaning fixed and certain and that it was originally intended to apply to the possession of an instrument in writing, the mating of which constituted the offense of forgery.

Believing that the indictment and evidence are sufficient in this case and finding no error in the record, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals hás been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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