
    HORN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    1. Forgery (§ 10) — Elements — Vouchee. Check — Signing- Receipt.
    Under Code Or. Proc. 1911, art. 925, which, denounces as forgery the alteration, without lawful authority, and with intent to injure or defraud, of an instrument in writing, etc., the raising of the figures on a voucher check would increase the pecuniary liability of its maker, and the person who raised such figures would be guilty of forgery, though he did not sign the receipt on the reverse side of the check.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 21-25; Dec. Dig. § 10.
    
    For other definitions, see Words and Phrases, vol. 3, pp. 2900-2910; vol. 8, p. 7665.]
    2. Forgery (§ 39) — Evidence—Circumstantial.
    In a prosecution for forgery in which the forgery relied on consisted of the raising of a voucher check, a bank cashier was properly permitted to testify that the voucher, as altered, had been paid by the bank, and also that the bank had paid a number of such checks to the accused in person, though he was not able to state positively that the accused presented the identical check.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 109, 110; Dec. Dig. § 39.]
    3. Criminal Law (§ 369) — Evidence—Other Crimes — Admissibility.
    Evidence that the accused had presented other forged checks for payment to the bank which paid the check alleged to be a forgery was improper, where such payments were not shown to have been contemporaneous with the transaction relied on.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. §, 369.]
    4. Forgery (§ 39) — Evidence — Proof of Signature — Bail Bond — Necessity of Proof That Defendant Signed in Person.
    In a prosecution for forgery, a bail bond was improperly admitted to show the defendant’s signature, in the absence of proof that he signed it in person.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 109, 110'; Dee. Dig. § 39.]
    5. Criminal Law (§ 1169) — Evidence — Prejudice.
    Where, in a prosecution for forgery, the defendant introduced no testimony, but relied on his plea of not guilty, the state was required to prove its case by competent testimony, so that the admission of such bond was prejudicial error, which would require a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §'§ 3088, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Robert Horn was convicted of forgery, and appeals.
    Reversed and remanded.
    Thomason & Wade, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with forgery. The indictment, omitting formal parts, is as follows:

“ * * With intent to injure and defraud, willfully and fraudulently alter an instrument in writing then and there already in existence, and which, had theretofore been made by W. P. Smith, cashier, and H. W. Whited, general manager, respectively, of the Nacogdoches & Southeastern Railroad Company, a corporation, with the said W. P. Smith, its cashier, and the said H. W. Whited, its general manager, the said W. P. Smith and H. W. Whited, as such officers aforesaid then and there having authority to make said instrument, and which said instrument at the time it was so made, and before it was altered as aforesaid by the said Bob Horn, was to the tenor as follows:
Nacogdoches & Southeastern R. R. Co.
Nacogdoches, Texas.
Voucher No. 203.
Nov. 15, 1910.
Favor of Robt. Horn
If the account as shown below is not correct, return without alteration and state differences.
Audited: Approved:
W. P. Smith, H. W. Whited,
Cashier. General Manager.
If the above account is not correct, return without alteration and state differences.
“Reverse side of said instrument:
Voucher Check
Nacogdoches & Southeastern R. R. Co. No. 203,
Pay to the order of Robt. Horn......$5.20
Five & 20/100.Dollars
“Indorsements on left end of said voucher check:
Receipt must be signed by the person, firm or* proper official of corporation in whose favor voucher check is drawn' otherwise authority must accompany receipt.
Received the amount stated in this voucher check in full payment of the within amount . Payee.
Payees and Banks are requested to make endorsements here
“In the above instrument the words and letters, to wit, ‘Nacogdoches & Southeastern R. R. Co.,’ mean the Nacogdoches & Southeastern Railroad Company, the corporation above mentioned. And the words and figures, to wit, ‘For balance due on Oct 10 Pay Roll 520,’ mean for balancé due on October, 1910, pay roll of the said Nacog-doches & Southeastern Railroad Company, $5.20, the said figures ‘520’ under the word ‘Amount’ meaning $5.20, the whole expression meaning that the said Nacogdoches & Southeastern Railroad Company was due the sum of $5.20 to the said Robt. Horn on the pay roll for October, 1910. And the said Bob Horn did then and there alter the said instrument in the manner following: On the one side after the words ‘Pay Roll,’ and before the figures 520 (meaning $5.20), by adding and inserting the figure ‘1’ before the figure ‘5’; and on the other side, headed Voucher Check, after the words, ‘Pay to the order of Robt. Horn’ and the dollar mark ($) and before the figures ‘520,’ by inserting the figure ‘1’ between the said dollar mark and the said figures 5.20, and changing the word ‘Five’ before the word and figures 20/ioo Dollars, to the word ‘fifteen.’ ” Then follows the instrument again, altered as alleged.

[1 ] Appellant admits this instrument is the subject of forgery, but the indictment to be sufficient must allege that the payee had signed the receipt, andi cites us to the case of Joiner v. State, 46 Tex. Cr. R. 408, 80 S. W. 531. It will be seen that this indictment contains the innuendo averments alleged to be essential in that case. The other authorities cited by appellant have no application; they only holding that, when an instrument on its face does not import a legal obligation, explanatory averments must be used to show it a subject of forgery. As shown above, explanatory averments were used to explain all that it was necessary to explain in the language, and, as thus explained, the instrument evidenced that the railroad company was indebted to appellant in the sum of $5.20, and a promise to pay it upon the execution of the receipt attached to the instrument. Was it necessary to allege or prove that Robert Horn had signed the receipt to evidence a legal claim against the railroad company for the amount? If so, the indictment would be fatally defective, and the motion sustained. It will be seen there remained nothing for the railroad company to do to render it a binding obligation, consequently the case of Robinson v. State, 35 Tex. Cr. R. 54, 43 S. W. 526, 60 Am. St. Rep. 20, is not in point. If Horn had never signed the receipt and died, could his heirs have collected the amount due on this order, and would it be admissible in evidence to prove that the railroad company was indebted in said sum? If Horn had not presented it to the bank, but instead had delivered it to hfe grocer merchant in payment of a debt due, without signing it, would it be a transfer of the claim, and could it be collected by the assignee? If it had been a genuine instrument, there is no doubt the assignee could collect it. Article 925, Code Cr. Proc., provides he is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall alter an instrument in writing, then already in existence, by whomsoever made, in such manner that the alteration would (if it had been legally made) have created, increased, diminished, discharged, or defeated any pecuniary obligation. If this instrument had been legally made (as altered), it would have increased the pecuniary obligation of the railroad company, and, whether appellant signed the receipt or did not do so, would not affect the pecuniary obligation of the company. Mr. Wharton in his work on Criminal Law, § 739 et seq., lays down the rule “that it is only necessary in order to make the instrument a subject of forgery that it should be capable of being used as proof in legal action,” and this instrument as altered, if true, would be evidence of a debt of $15 without any explanatory averments. For other authorities, see Wheeler v. State, 62 Tex. Or. R. 370, 137 S. W. 125, and cases there cited. The instrument as originally made by the company had a receipt attached thereto for appellant to sign, but it was not then signed; consequently in .alleging the instrument it' was not necessary to allege that he had signed it. And the fact that he, if he did do so after it was altered, signed it, would not render the instrument inadmissible in evidence, because he had subsequently signed the receipt. The signature to the receipt not being essential to constitute the crime of forgery, it was unnecessary to allege that he had signed it.

There was no error in permitting the cashier of the bank to testify that the voucher, as altered, had been paid by it and the amount paid. This was a case of circumstantial evidence, and each circumstance connected with the entire transaction was admissible, as was the fact that the bank had paid a number of such vouchers to appellant in person, although not able to state positively that appellant presented this identical check. In a case depending entirely on circumstantial evidence, greater latitude is allowed in the presentation of evidence than when direct and positive testimony is relied on. Noftsinger v. State, 7 Tex. App. 301.

But the court was in error in permitting it to be elicited that defendant had presented other forged checks for payment, not shown to have been contemporaneous with the transaction here alleged.

The court erred in permitting the bail bond to be introduced, to use the name of appellant as signed thereto as the standard of comparison, without any proof that appellant had signed the bond. Phillips v. State, 6 Tex. App. 364.

And in this case this was a material error. Appellant introduced no testimony but relied on his plea of not guilty; this requiring the state to prove its case by competent testimony. The state was not able to prove this voucher ever came into the hands of appellant, except by circumstances. It was desired to prove that the alterations and signature to the receipt were in his handwriting, and the bond was introduced as a standard of comparison. It would have been admissible for that purpose if it had been proven' that he signed it in person, but, in the absence of such proof, the court could not presume that he did sign it in person, simply because it was a bond in a case in which he was the defendant, and this bond being introduced over the objection of appellant, and used as a standard of comparison with the writing on the voucher, will necessitate a reversal of the case.

The other matters complained of present no error.

The judgment is reversed, and the cause is remanded.  