Minix v. State

¶1dissenting.

¶2The course this cause has taken is illustrative of transitional difficulties in moving from the ways of the old penal code into the course of the new one. As author of the original panel opinion, I find myself in the anomalous position of supporting the motion for rehearing while other of my Brothers now believe not only that the indictment is defective, but fatally so.1 But since that opinion we have discussed and considered substantially the same problem in a variety of contexts and, upon reflection, my best judgment on the matter of determining sufficiency of an indictment generally is that we should not be unduly influenced by earlier treatment of pleadings under statutes preceding and repealed by the new penal code. Rather we must address such issues that are presented with the format, definitions, purposes and objectives of that code firmly in mind. See V.T.C.A., Penal Code Section 1.02(2) and Introduction, 1 V.T.C.A., Penal Code XIII.

¶3In this particular case the indictment is drawn from the “element of offense” requirements of V.T.C.A., Penal Code Section 1.07(a), and the broad statutory statement of the offense with incorporation of the prescribed method or manner by which the underlying facts suggest it was committed. That is, the indictment alleges that the accused did then and there “knowingly, with intent to defraud and harm, forge, by possession with intent to utter the same, a writing as follows: (setting out a copy of the writing).” In rearranged order, the indictment tracks applicable portions of Section 32.21, V.T.C.A., Penal Code:

(b) A person commits an offense if he forges a writing with intent to defraud or harm another.

… *

(a) For purposes of this section:

(1) “Forge” means:

******

(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.

¶4An instrument is forged within the meaning of Paragraph (A) if it has been altered, made, completed, executed, or authenticated so that it purports, e. g., “to be the act of another who did not authorize that act.”

¶5*469Whatever else they might be called — essential ingredients, necessary elements, constituent elements — it is clear to me that the indictment in this case substantively states an offense to withstand an exception lodged under Article 27.08, V.A.C.C.P., and, further, sets forth in plain and intelligible words the “ultimate facts” constituting the offense, see Article 21.02, V.A.C.C.P., to render it invulnerable to an exception as to form contemplated by Article 27.09, Paragraph 2, Y.A.C.C.P. A person who is charged with forging a writing, by possessing it with intent to utter it, with intent to defraud or harm another, has been adequately informed of his offensive conduct. Averring one knowingly, with intent to defraud and harm, possessed a forged writing with intent to utter it, and displaying it informs that the writing purports to be the act of another who did not authorize that act.2

¶6The content of the indictment before us was more than enough under old Article 998, V.A.P.C., 1925.3Fifer v. State, 451 S.W.2d 757 (Tex.Cr.App.1970) and cases cited.

¶7Now that every forgery offense is a species of fraud denounced in Chapter 32, V.A. T.C., Penal Code, the gist of the offense is “intent to defraud or harm” another.4Stuebgen v. State, 547 S.W.2d 29,32 (Tex.Cr.App.1977). The new code does not provide a definition of “defraud” or “fraud,” but we are directed by Section 1.05(b) to apply certain sections of the Code Construction Act, Article 5429b-2, V.A.C.S., to construction of the penal code. Section 2.01 of that Act provides in pertinent part:

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

¶8On the civil side there is a great body of law on the subject of fraud, and it is to that we may, and I do now, resort to determine what have been held to be ingredients of fraud in aid of our construction of “intent to defraud.”

¶9Anderson v. Paschall, 60 S.W.2d 1087 (Tex.Civ.App.—Fort Worth 1933), affirmed, Paschall v. Anderson, 91 S.W.2d 1050 (Comm.App., Opinion Adopted, 1936) states precisely:

“ ‘Actual fraud’ has a definite meaning in our law. Its distinguishing feature from other types of fraud is the dishonest intention.”

¶10For the essence of actionable fraud is not that false representations were intentionally made but that their maker intended that they be acted upon — a distinction pointed out in Wilson v. Jones, 45 S.W.2d 572, 575 (Comm.App., Holdings Approved, 1931) and reiterated by the court in Custom Leasing, Inc. v. Texas Bank and Trust Co., 516 S.W.2d 138, 144 (Tex.1974).

¶11From the settled meaning of fraud and established rules concerning it in the civil law, I glean that one who intends to defraud by possessing with intent to utter a *470check that is in fact a forgery commits an offense denounced by Section 32.21(a)(1)(C) and (b). The thrust of the penal prohibition is the fraudulent intent that motivates one to possess a forged writing until an opportunity to utter it is presented. The dishonest intention is the conscious objective or desire that the person to whom the writing is presented will act on it to the benefit of the presenter and the correlative detriment of another. To form that objective, or hold that desire, one must necessarily have accepted the notion that the writing may not be what it appears to be. But, as in civil fraud, one need not actually know that the writing purports to be the act of another who did not authorize that act. It is enough' that one consciously engage in whatever mental exercise, concerning the facts and circumstances as they are conceived by him to be, is sufficient to conjure up the evil intent to defraud. Thus, short of mental certitude of the false nature of the writing, one may guess, surmise or believe that it is — indeed, one may even be foolhearty enough to act on fond hope. Whatever the psychic processes follow awareness of characteristics of a writing that comes to hand, if the consequence is formulation of an intent to defraud by uttering it, to inform the possessor that the writing purports to be the act of another who did not authorize it is a redundant communication.

¶12Moreover, again as directed by the Code Construction Act, we find that the word “utter” has a particular meaning when used in connection with a writing that labels the writing as false or forged. Thus from Black’s Law Dictionary, Revised 4th Edition, 1716 we are instructed, “To utter, as used in a statute against forgery and counterfeiting, means to offer ... a forged instrument, with the representation, by words or actions, that the same is genuine.” 5 Thus where, as here, the indictment alleges possession with intent to utter, the accused is informed that the State claims the accused possessed a false writing he intended to present as true.

¶13What has been demonstrated, then, is that in matters of fraud involving a false representation the vice is in the making with intent that it be accepted and relied upon rather than knowledge of the maker that the representation is false and, furthermore, that an allegation of intent to utter a writing provides notice that the writing intended to be passed as true is actually false — the writing purports to be an act that was not authorized. Every aspect of offensive intent in context of forbidden conduct was presented in the indictment in this cause.

¶14Indeed, it may be argued that more was set out than necessary. To elaborate, using the idiom suggested elsewhere, the facts found by the grand jury that are identified in its indictment and thereby communicated to the accused are that on the stated date in the designated location the defendant did:

1. knowingly — you were aware of the nature of your conduct and existence of the circumstances surrounding it;

2. with intent — you had the conscious objective or desire to engage in that conduct or cause the result;

3. to defraud — you meant to induce another to rely on the representations appearing on the face of the writing, one or more of which is false, to the monetary detriment of another;

4. forge — the writing you possessed purports to be the act of another who did not authorize that act;

5. by possessing — you had actual care, custody, control and management of the writing;

6. intent to utter — you meant to present the false writing as true to another in exchange for monetary consideration;

7. a writing — what you possessed was this check displayed here on the face of *471this indictment that along with other identifying data bears your name as payee and the purported signature of Charles H. Weinbaum.

¶15In short, by its indictment the grand jury is communicating to the accused that these are the facts as we have found them and that the State, through its prosecuting attorney, expects to prove. Meeting all the statutory requirements, and providing ample notice, the indictment did not suffer the deficiency claimed in the motion to quash.6 The trial court, therefore, did not err in overruling it.