
    CARRELL v. STATE.
    (No. 5145.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On Rehearing, Feb. 12, 1919.)
    1. Schools and School Districts <&wkey;92(l)— Transfer Funds — Withdrawal—Authority of Superintendent of Schools.
    A county superintendent of schools is authorized,'if not required, by law to effect transfer of fund arising from transfer of school children from common schools to independent school district, and can draw checks and orders for purpose of doing so.
    
      2. Forgery <&wkey;12(4) — Natum os' Instrument —Order roe Payment of Money.
    An order to a bank, “Please pay to T. O. Perry, or bearer, §900.00 Nine Hundred and no/100 Dollars out of the State & Oo. collected for school District No. -, Johnson Oo. for Trs. expenses. W. J. Carrell, County Superintendent Public Schools” — was calculated to deceive, even if not valid, and W. J. O. was guilty of forgery, where he forged name of T. C. Perry on back thereof and drew such amount from bank.
    3. Forgery <&wkey;7(3) — Money Orders — Negotiability — Indorsement.
    Even though county superintendent of public schools could not execute a negotiable order to a bank to pay certain money to T., if such order was payable to “T., or, bearer,” and T. indorsed the same, he thereby guaranteed genuineness thereof, and would be liable, although unenforceable against bank or maker, so that false in-dorsement of payee’s name would constitute forgery.
    4. Criminal Law <&wkey;593 — Continuance-Absence oe Chief Counsel.
    Where accused was represented by'two able attorneys, who represented him in trial with zeal and ability, order overruling motion for continuance on account of absence of chief counsel will not be held reversible error.
    5. Criminal Law <&wkey;369(4), 406(6) — Evidence oe Other Crimes — Defendant’s Conduct and Admission.
    It was proper to admit evidence that accused, a superintendent of schools, on being called to a bank, separated cheeks drawn on school fund, putting genuine ones in one pile and ones on which names of payees had been forged in another pile, and that the cheek, the basis of prosecution, was among the bad cheeks, and that accused stated that he did not understand why he had made such a fool of himself, and such evidence was not inadmissible as tending to show other separate and distinct transactions.
    6. Criminal Law &wkey;>400(9) — Best Evidence —Deposit Slip.
    Deposit slips which were in fact original entries of deposit in a bank were best evidence of deposit.
    7. Forgery &wkey;>37 — Evidence.
    In prosecution of superintendent of schools for forging names of payees on checks drawn by him, evidence that money drawn on had been deposited in bank was material and admissible.
    S. Criminal Law &wkey;>400(6) — Incorporation of Bank — Parol Evidence.
    Incorporation of a national bank may be shown by oral testimony, where the charter has been lost or mislaid.
    9. Criminal Law <&wkey;400(6) — Incorporation of Bank — Proof.
    Where original articles of incorporation of national bank were lost, a certified copy of amended articles was admissible in evidence, if not sufficient proof of incorporation.
    10. Criminal Law <&wkey;472 — Expert Testimony.
    It was permissible for president of bank, which was depository for years of school funds, to explain meaning of language of check drawn by county superintendent of schools, set out in indictment for forgery, superintendent being charged with having forged name of payee thereto.
    Appeal from District Court, Hill County; . Horton B. Porter, Judge.
    W. J. Carrell was convicted of forgery and he appeals.
    Affirmed.
    See, also, 204 S. W. 334.
    F. E. Johnson and S. C. Padelford, both of Cleburne, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   BRADY, Special Judge.

Appellant was charged by indictment with the offense of forgery, was convicted, and his punishment assessed at confinement in the penitentiary for three years. The indictment contained two counts, charging forgery by alteration of the instrument hereinafter set out, ¡the second count charging the passing of the alleged forged instrument.

In substance, the indictment charged that appellant, as county superintendent of public instruction for Johnson county, Tex., without lawful authority, and with intent to injure and defraud, did willfully and fraudulently alter a written instrument already in existence, and which he had theretofore made, and which before its alleged alteration was as follows:

“Cleburne, Texas, May 30, 1913. “The National Bank of Cleburne County Depository.
“Please pay to T. C. Perry, or bearer,
§900.00
Nine Hundred and no/100.dollars out of the State & Co. collected for school District No. -, Johnson Co. for Trs. expenses. “V. J. Carrell, County “Superintendent Public Schools.”

The indictment then charges that, appellant altered the said instrument by writing and indorsing the name of T. C. Perry across the back of said instrument, so as to make the same appear as the indorsement of said T. C. Perry,' and in such a manner as that said false indorsement so made would have created, if the same had been true and legally made, a pecuniary obligation of T. C. Perry.

By innuendo and explanatory statements, it was alleged in the indictment that the bank upon which said check was drawn was a national bank, and was the legal depository of the public school funds of Johnson county. Other explanatory matters were alleged, not necessary to here set out, including the averment that part of the language and abbreviations in the instrument meant that T. O. Perry was entitled to $900 out of the school fund of Johnson county for the year 1913, and that said sum was to be paid to T. C. Perry, payee in said check, out of the fund for transfers, such transfer fund arising from the transfer of school children from the common schools to an independent school district of said county, or to some other district outside of that county. It was further alleged in the indictment that appellant intended by said instrument, and the language and figures therein used, that same should be understood and accepted as a check on, and as authority to, said depository to pay out of said school funds the said transfer, fund of $900. It was also averred in the indictment that appellant intended to sign said instrument in his official capacity of county superintendent of public instruction by the use of the language “County Superintendent of Public Schools.”

The second count of the indictment is the same as the first, except that appellant was charged with fraudulently passing as true the' alleged forged instrument to the National Bank of Cleburne.

This ease was before this court on a former appeal, being cause No. 4975, and the case was affirmed in an opinion delivered by Presiding Judge Davidson. It having been thereafter discovered, however, that appellant had not been sentenced, and that therefore this court had no jurisdiction to entertain his said appeal, the same was dismissed (204 S. W. 334). The case is now here upon a second appeal upon the same record, and with substantially the same grounds of error assigned.

Appellant’s counsel have attacked the indictment from almost every conceivable standpoint, and have presented their objections in multifarious ways. The same questions in effect were presented by the objections to the validity of the indictment in another case, wherein appellant appealed to this court, viz. Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217. The indictment in that case was in all substantial respects similar to the indictment in the instant case, and the validity of such indictment was upheld by this court, except as to the failure of the state to properly innuendo and explain the phrase, “County Superintendent of Public Schools.” This vice in the indictment has been cured in the present case, and therefore we think the questions presented are to be controlled by the decision in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217; and We might well rest the décision, as to the validity of the indictment, upon the opinion there rendered by Presiding Judge Prendergast. However, counsel for appellant have presented anew these questions in elaborate written and oral argument with such earnestness and vigor that we have been impelled to again refer to the authorities and the objections urged against the indictment.

We think that the various contentions and argument of counsel urged against the validity of the indictment may be reduced to these propositions: (1) That the instrument set out in the indictment was illegal and void, and could not be made the subject of forgery, fceoause the transfer fund against which said check purported to be drawn was a trust fund, and that the county superintendent was without lawful authority to draw the check against said fund, and the bank had m> authority to pay the same; (2) that' the said instrument was illegal and void for the further reason that the payee named therein was an individual, who could not lawfully be made payee of such an instrument, and who was without legal authority to cash said check or receive said fund; (3) that the instrument was nonnegotiable, and that the indorsement by appellant of the payee’s name on the back of said check was wholly without legal effect, and did not and could not create any pecuniary obligation, or affect or transfer property in any manner whatsoever; (4) that for these reasons the instrument was a nullity, including the in-dorsement, and could not be made the subject of forgery by alteration, or of passing a forged instrument.

In the Carrell Case, 79 Tex. Cr. R. supra, Presiding Judga Prendergast set out the substance of the applicable provisions of our Penal Code on the subject of forgery, with the exception of the statute on passing forged instruments; and also tersely stated the substance of the pertinent provisions of the Revised Statutes relating to the powers and duties of the county superintendent, especially in reference to the transfer funds in the school fund. We deem it unnecessary to again set out these provisions of law. Neither' do we feel called upon to again state the reasons which led to the conclusion there clearly decided, that the county superintendent was authorized, if not required, by law to effect the transfer of the fund described in the indictment. To this conclusion we adhere. It follows that the bank, the depository of the school fund, was authorized and required to cash and pay a proper check or order drawn by the county superintendent for the withdrawal of the said transfer fund to the district entitled to same, or to the proper officer or custodian of such fund; but appellant further raises the point that the payee in the instrument, T. O. Perry, was not a legal payee, because he had no title or right to said fund, nor authority to cash said check or receive the money. It may well be doubted whether the county superintendent had any lawful authority to draw said check in favor of the said payee, unless lie were the treasurer of the independent district, or the proper custodian of the trust fund after its withdrawal and) transfer from, the 'county depository, the payor bank. Conceding this proposition to be correct, however, We do not think it follows that the instrument would be null and void or incapable of being made the subject of forgery under our statutes.

It is a proposition abundantly supported by the authorities in this and other states, as well as by text-writers of eminence, that it is not necessary that a written instrument, made the basis of a forgery indictment should import an actual legal efficacy. The writing is not required to be such as that, if genuine, it would be a binding obligation. It is sufficient that it is calculated to deceive and is intended to be used to defraud. If the instrument purports to be good, although it might be shown by extraneous facts to be invalid, it will suffice as a predicate for forgery if calculated to deceive or intended for purposes of fraud. A valuable collation of the authorities on this point is to be found in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501, in the opinion of Judge Prendergast; also see the dissenting opinion of Judge Davidson in CafCey v. State, 36 Tex. Cr. R. 198, 36 S. W. 82, 61 Am. St. Rep. 841. This rule was applied in the Dreeben Case by this court, and we refer to the authorities and discussion in the opinion in that case as express-, ing our views and as applicable to the instant case.

In the present instrument the payee was simply described as T. C. Perry. Por aught that appears on the face of the instrument, he might have been the treasurer of the independent district, entitled to the transfer fund described therein, or the proper person to withdraw and hold the custqdy of said fund. We think it is clear that the instrument set out in the indictment in this case Imported at least an apparent legal efficacy and purported to be genuine. It was calculated to deceive, was intended to be and was used to defraud, and purported to affect property, viz. the transfer fund belonging to a school district. Therefore w:e adhere to the holding in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217, that the instrument in question is clearly the subject of forgery.

If the instrument set out in the indictment were conceded to be invalid, we still think that by reason of the alteration of same, by the false and fraudulent in-dorsement of the payee’s name thereon, such act and fact of indorsement, under the circumstances, would constitute forgery. We are not inclined to agree with counsel for appellant that the said instrument is nonnegotiable. It may be that in a strict commercial sense this instrument would not be regarded as commercial paper, with all the usual features and consequences of negotiability. It may be conceded that such instruments could not be indorsed by the payee and transfer any greater title than that held by the indorser; and also that the doctrine of innocent purchaser would not obtain as to such an instrument; Yet we entertain no doubt that the instrument was at least quasi negotiable and was such that the payee, T. 0. Perry, by his indorsement, if genuine, would have created and incurred a pecuniary obligation and liability to his indorsee and transferee.

It was negotiable in form, and apparently authorized an indorsement by the payee, which would transfer the title to the instrument, and to the fund against which it was drawfa. Perhaps because of said payee’s want of authority to legally become the payee of such an instrument, or to withdraw or receive the trust fund, a person receiving said instrument from him, by indorsment or transfer, would not have been able to maintain an action either against the bank or the maker of the check, the county superintendent. Be that as it may, we think there can be no doubt that in such a case the indorsee and transferee could have maintained an action against Perry based on his indorsement and transfer of the check. By his in-dorsement he, in legal effect, would have guaranteed the genuineness and validity of the instrument, and would have become pe-cuniarily liable to his indorsee or transferee receiving same for a valuable consideration. Therefore it would be idle to argue that, if the indorsement of said instrument had been in fact made by T. C. Perry, it would not have created a pecuniary obligation on his part, as alleged in this indictment. We again refer to the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501, upon the question of. negotiability of the instrument under discussion, and of the legal effect of the fraudulent indorsement thereof by appellant; and also to Carrell v. State, 79 Tex. Cr. R 198, 184 S. W. 217.

We have examined the authorities cited by appellant, under his several propositions attacking the indictment, and we are unable to perceive that any of them are applicable to this indictment, under our forgery statutes. We will mention only two of them. Appellant strongly relies upon the case of Pox v. Shipman, 19 Mich. 219. The instrument involved in that case was a school district warrant drawn by the director of a school district on the district treasury, and payable to the assessor, but not to bearer or order. It was indorsed by the assessor to bearer. The holder brought an action of assumpsit, and the sole holding in the case was that the warrant was not negotiable, and that the district treasurer was under no obligation to pay the warrant to any person other than the assessor named therein. The instrument was not even negotiable in form, and we cannot perceive the force or application of the case to the questions here.

Another case strongly urged in argument by appellant’s counsel is that of School District v. Mallory, 23 Mich. 111. That case involved also a school district warrant, or order, payable apparently to a firm of individuals or bearer, and was drawn by the director on the district treasurer. It was held that the order was void on its face because the director had no authority to draw such an order on1 the treasurer payable to any one but the district assessor, who was the disbursing officer of the district; that debts or claims of this class were authorized by law to be paid only by the assessor, when properly drawn and countersigned.

It will be observed that the warrant in this case was on its very face shown to be drawn in favor of a firm of individuals, who, of course, could not be the district assessor, and therefore was in the very teeth of the school law of Michigan, which provided that such warrants or orders could only be drawn in favor of the assessor. It is also to be remembered that this case apparently holds that claims or debts of the class described on the face of said warrant or order could only be paid by the assessor, who was the lawful disbursing officer of the district.

We think, outside of the fact that neither of the two eases just referred to were forgery cases, but were civil actions, the above considerations served to distinguish them from the present case. Besides, it is not pointed out that the statutes of Michigan are the same as those in Texas on the subject of forgery, and it is unsafe to attempt ’to apply principles or doctrines announced in other jurisdictions where the statute law applicable is not clearly the same in substance.

For the reasons above given, and in the former cases cited, we are compelled to overrule all of the assignments and bills of exception alleging the invalidity of the indictment, and we hold the indictment good.

Appellant’s bill of exception No. 1 complains of the trial court’s action in overruling appellant's; motion for continuance based on the absence of appellant’s leading counsel, Hon. D. W. Odell. We have examined this bill, and are of the opinion that no adequate reason was assigned in the motion or by the facts recited in the bill for the absence of leading counsel. Fhrthermore, the bill shows that appellant was represented by two able attorneys, and the record bears intrinsic evidence of the zeal and abijity with which appellant was represented in the trial of the cause by the associate counsel. Under the uniform1 rule of this court this bill shows no injury to appellant and fails to present any reversible error. On this point it will be sufficient to cite the following cases: Johnson v. State, 41 Tex. Cr. R. 10, 51 S. W. 931, 54 S. W. 598; Monroe v. State, 56 Tex. Cr. R. 244, 119 S. W. 1146. Therefore we hold that the court properly overruled appellant’s motion for continuance, and the said bill of exception is without merit.

By bill of exception No. 2 appellant complains of the action of the trial court in permitting the state to introduce evidence of alleged extraneous crimes. This bill, in connection with the statement of facts, shows that S. B. Norwood, the president of the bank on which the alleged forged check was drawn, testified to a conversation, with appellant in the law office of Ramsey & Odell, in Cleburne, in the presence of Mr. W. M. Odell, who was attorney for the bank. The substance of the testimony was that Mr. Norwood said, in the presence of Mr. Odell, that appellant had gotten in trouble over some fictitious or forged vouchers or checks, and had thereby obtained certain funds from the state; that Mr. Odell remarked to appellant that he was very sorry to hear it; that appellant replied “Fes; that he didn’t understand why he had made such a fool of himself, or had acted such a fool” — something substantially to that effect; that Mr. Norwood handed appellant all of the vouchers that had been drawn against the school fund for the past two years, and asked him to pick out those that were good and put them in one pile, and those that were bad and put them in another, which he proceeded to do; that witness noticed the' $900 voucher, the check set out in the indictment, and that appellant put same in the pile called the “straw pile”; that witness asked appellant about this voucher, and asked him if he did not use his father-in-law’s name, and he said that he did, and witness further asked him. if he didn’t indorse it with his left hand, and he said that he did. Witness asked appellant, after he separated the good ones from the bad ones, if he knew how much it amounted to, and he said that he did not, that he had lost track of it; that the vouchers claimed as bad, or “straw,” vouchers were tabulated, and that witness handed said tabulation to appellant, and they amounted to $-; that when appellant saw the amount of the tabulation his exact expression was, “My God!” that witness asked appellant how he could write the signatures the same, and he stated that when he would use one name he would keep a copy of it in the office, and the next time he used a check like that he would refer to it and write it like he wrote it before.

By bill of exception No. 8 appellant presents similar objections to the testimony of W. M. Odell, whose testimony was along the same line as that of the witness Norwood. The substance of the objections is that by this testimony the state was attempting and was permitted to show other separate and distinct transactions than the one for which appellant was being tried, and that said testimony was not admissible for any purpose, and was highly prejudicial to appellant.

We think this testimony was admissible, as the conversation was shown to directly relate to the check in controversy, and involved appellant’s own statement with regard to the check for $900, set out to the indictment, which appellant’s own admissions showed he had classed in the “straw pile,” or list of bad checks. Both the hill and the statement of facts show that the court amply safeguarded appellant’s rights in relation to this testimony -by instructing the jury not to consider the other alleged transactions otherwise than as explanatory of the matter inquired about; that is, the particular check for $900. It is further shown by the transcript that the court specially charged the jury as follows:

“You are further instructed that you are not to consider for any purpose that part of general conversation, or conversation, or conversations, by the defendant, W. J. Carrell, and S. H. Nor-wood, or W. M. Odell, relative to any transaction or transactions other than that which bears directly, or throws light upon, if it does, the check or voucher offered in evidence herein, being Exhibit No. 2.”

We believe the jury could not have been misled by the charge, or by the verbal instructions given at the time this testimony was offered and admitted, and that the rights of appellant were fully safeguarded and protected by the court’s instructions, limiting the scope and effect of this testimony to the issue before the jury. Being of the opinion that these two bills of exceptions are without merit, we overrule the assignments.

By bill of exception No. 3 appellant complains of the action of the trial court in admitting in evidence deposit slips Nos. 3, 4, .and 5, and in permitting the witness Nor-wood to state what these deposit slips were. This testimony was objected to because the deposit slips were not the best evidence, and because the statement of witness in regard thereto would be an opinion and the conclusion of the witness, and that said testimony was wholly inadmissible and immaterial. From the bill and statement of facts it appears that these deposit slips were in fact the original entries of deposit made by appellant in the bank and were the best evidence of the deposits. The testimony related to one of the material allegations in the indictment, the receipt by the bank from the state of the Johnson county available school fund, out of which the transfer fund alleged in the indictment arose. The testimony was admissible on this issue, and the bill of exceptions and statement of facts show that the testimony of the witness Norwood in relation thereto was not a conclusion. The bill wholly fails to show any reversible error, and the assignment is therefore overruled.

By bill of exception No. 4 appellant assigns as error the admission by the trial court of the amended articles of association of the National Bank of Cleburne, and the extension of the charter of said bank issued by the Comptroller of the Currency, because these instruments fail to show any authority or charter of said banking institution as a national bank, and that said testimony was secondary and not the best evidence. We have carefully examined this bill in connection with the statement of facts, and-find that the state satisfactorily accounted for its failure to introduce the original articles of incorporation of the bank. The certified copy of the amended articles and the extension of charter having for their purpose, and reciting on their face, the extension of the corporate life of the institution as a national bank, had a direct bearing upon a material issue in the case and a necessary allegation in the indictment, and we think were admissible if not sufficient proof of the incorporation of the bank. Furthermore, the fact of incorporation was shown by oral testimony upon the predicate that the original charter had been lost or mislaid. It is unnecessary to cite authorities that a fact of this sort maybe shown by oral testimony. Indeed, many authorities hold that such a fact may be established by reputation, where better evidence is not available. This bill shows no reversible error and the assignment is overruled.

In bills of exception Nos. 5, 6, and 7 appellant presents the alleged errors of the trial court in permitting S. B. Norwood to testify as to the meaning of certain words and phrases and abbreviations contained in the instrument set out in the indictment. This testimony all related to matters which were made the subject of innuendo and explanatory statement in the averments of the indictment, and was upon material, if not necessary, issues. The witness spoke from.' a long and familiar course of dealing with the public schoojUfund, as president of the bank which was me depository of such funds, and from a long and intimate course. of dealing with appellant in his official capacity as superintendent of public instruction. We are of the opinion that it was proper, if not necessary, to prove these facts, and it was permissible for the witness to explain the meaning of the language as set out in the indictment.

There are other errors assigned, but we deem it unnecessary to discuss them. They have all been examined, and we are of the opinion that none of them present reversible error, and they are therefore all overruled.

'Since we are of the opinion that it has not been shown that reversible error was committed on the trial, the judgment will be affirmed.

MORROW, J., not sitting because disqualified.

On Rehearing.

. ROBERTSON, Special Judge- In both oral and written arguments counsel for appellant has attacked the original opinion in this case mainly upon the ground that the instrument declared upon and set out in the indictment is not such an instrument as can be made the basis of a charge of forgery under our statute, and that said instrument is void upon its face, is not negotiable under the law merchant, and is not a pecuniary obligation within the meaning of our 'statute on forgery. All of these questions were fully discussed in the opinion of the court in the case of Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217, which was' another case against appellant on a charge of forgery of an instrument which was substantially to the same effect as the one involved in the present case. In the case just referred to this court held the indictment defective on the ground that it did not contain certain innuendo aver-ments necessary to its validity, but held that the indictment was otherwise sufficient.

In the present case the indictment contains the innuendo averments necessary to meet the objections pointed out in the opinion in ,the former case. Both in the former case and in this one appellant was charged, not with having forged the instrument itself, but with having forged the indorsement on the back thereof. The indictment in both cases based the charge of forgery upon the unlawful and fraudulent making of the in-dorsement on the back of the instrument.

In Carrell v. State, supra, it was held, in effect, that the instrument set out in the indictment in that case was not void so as to prevent it from being the subject of forgery, and that the indorsement on the back thereof, if genuine, would have affected the indor-see pecuniarily, and hav^ created a legal pecuniary obligation on ¾⅛ part. On the authority of that case, the soundness of which we do not question, the contentions of the appellant must be overruled.

In neither the oral argument before the court on rehearing, nor in the written argument filed herein, does the appellant mention or discuss the case of Oarrell v. State, supra, but appears to have wholly ignored the decision in that case, although directly in point; and for us to now sustain the contentions of appellant would require the overruling of that case, which we are unwilling to do, believing that the legal principles involved were correctly decided-

In the original opinion In this case the authorities cited by appellant were reviewed, discussed, and distinguished, and, besides,, those authorities were decisions of the courts of other states, and are not controlling over the decisions of the courts of this state.

We do not doubt that the instrument declared upon, and set out in the indictment, is a pecuniary obligation — one having money for its object — within the meaning of our statute on forgery. Neither do we doubt, that the false and fraudulent making of the-indorsement on the back thereof would, if genuine, have created a pecuniary obligation, and may properly be made the basis of forgery under our statute.

These questions were fully discussed in the case of Oarrell v. State, supra, and in the original opinion in this case, and were, we believe, correctly decided, which necessitates the overruling of appellant’s motion for rehearing, which is accordingly so done. 
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