L. O. Fonville v. The State, 17 Tex. Ct. App. 368

Hurt, Judge. This is a conviction for forgery, with two years’ confinement in the penitentiary as the punishment. There is but one debatable question presented in the record; and that is, whether, under the facts of this case, appellant committed forgery under our Code.

The evidence shows that the appellant was, on the 12th of March, 1883, and previous thereto, engaged in carrying the mail between Arlington and Mansfield; that he carried the mail in a hack; that he carried express packages and passengers and bundles for parties on the hack line — or, in legal phraseology, he held himself out as a “ common carrier.” That on Saturday morning, the 10th day of March, 1883, one E. M.

Hamby requested appellant, who was then in his hack, at the town of Mansfield, about starting to Arlington with mail, to bring for him, Hamby, an express package that was then in the express office at Arlington. The appellant brought the package for Hamby. That Hamby, at the time the package was delivered to him by appellant, on Saturday, paid the charges. That appellant three days thereafter, on Tuesday, the 13th day of March, gave Hamby the receipt in question.

That at that time Hamby paid appellant nothing, but that the money paid appellant for -which the receipt in question was given was paid on Saturday, the 10th of March. Appellant paid Middleton, the agent of the express company at Arlington, $1.35, the charges on a banjo, the property of Hamby, the prosecutor. Appellant received from Hamby $1.75, representing that that amount had been claimed and charged by the company as the express charges on the banjo. After Hamby had paid the $1.75 to appellant, he requested appellant to get a receipt from the agent.

This was not done, but instead thereof appellant forged a receipt for $1.75, purporting to have been signed by Middleton, the agent of the company, and delivered it to Hamby. The receipt is as follows : “ Arlington, 3—12, 1883. ^Received from L. 0. Fonville, one 75-100 dollars on freight for E. M. Hamby. “$1.75. Middletoe, Agent.” The indictment alleges that this instrument, if true, would have discharged and defeated a certain pecuniary obligation.

It is urged by counsel for appellant that the receipt, under the circumstances of this case, could not have the effect to discharge or defeat a pecuniary obligation, and that therefore appellant is not guilty of forgery. Let us suppose that Hamby has ascertained that appellant had only paid Middleton $1.35 instead of the $1.75, and had instituted suit for the forty cents, will it be contended that, if Middleton’s receipt was absolutely true, Hamby’s suit would not be defeated ?

Appellant having only paid Middleton §1.35, and receiving $1.75 from Hamby, he was by this transaction placed, in conscience and law, under a pecuniary obligation to Hamby, to the amount of forty cents. And for this amount, though small indeed, Hamby had a right of action against appellant. How suppose suit instituted; upon the trial, if indeed he had paid Middleton, as is stated in the receipt, $1.75, certainly the pecuniary obligation of him to Hamby would have been defeated.

Again, it is not required that the instrument, if true, should in fact discharge or defeat the obligation; it will be the subject of forgery if its tendency is such. About the same time of this forgery, another transaction, precisely similar to this, was introduced in evidence against the defendant, over his objections. In this there was no error. It is urged, however, by counsel for appellant, that, conceding the evidence to be competent, the court should have instructed the jury for what purpose the evidence could be used.

This last proposition is correct, but, looking to the statement of facts — all of the facts — for this court to reverse the judgment for such error it must appear to us that appellant was probably injured by the failure of the court to control this matter in the charge. It must be borne in mind that appellant did not, at the time, object to the charge, because of this omission, nor ask the proper charge, nor a new trial, because of this defect in the charge.

For the first time this point is raised in this court, and as it does not appear that appellant has been injured, we will not reverse the judgment because of this error. We have examined the other matters relied upon for a reversal of the judgment; but do not think they, or either of them, will authorize us in disturbing the judgment. The judgment is affirmed. Affirmed. [Opinion delivered at Tyler, November 29, 1884 Motion for rehearing overruled at Galveston, February 4, 1885.]