Appellant was convicted of forging the following instrument of writing, commonly called "a school voucher," to-wit:
"No. 5. $36.00.
"Blanket Creek School District No. 51, Comanche County, Texas, May 20th, 1890. Pay to Linda C. Switzer, or order, the sum of thirty-six dollars out of the public school fund apportioned to the Blanket Creek School District No. 51, for services as teacher in the public free school of said district for the month ending the _____ day of May 20, 1890.
"J.B. GATES, "B.W. SWITZER,
"Trustees of School District No. 51, in Comanche County, Texas."
"To A.J. Caffey, County Treasurer, Comanche County, Texas."
"Approved. Chas. E. Williamson, County (Ex officio Superintendent, Comanche County." *Page 200
Appellant moved to quash the indictment, because, under the law of this State, the instrument set forth in the indictment was not the subject of forgery, nor could it be made the subject of forgery by any allegations. Our statute on the subject of payment of amounts due school teachers reads as follows: "The amount contracted by trustees to be paid a teacher shall be paid on a check drawn by the majority of the trustees on the county treasurer, and approved by the county superintendent. The check shall in all instances be accompanied by the affidavit of the teacher that he is entitled to the amount specified in the check as compensation under his contract as a teacher." See, Acts 1884; Sayles' Civ. Stat., Art. 3776; Rev. Stat., 1895, Art. 3962. The indictment shows that two of the school trustees signed the check. It also shows that it was approved by the county superintendent of said county. It fails to allege that the affidavit of the teacher accompanied the check. The contention of the appellant is that this check is absolutely void, as it neither created, increased, diminished, discharged, nor defeated any pecuniary obligation, or would have transferred or in any manner have affected any property whatever. The question for our decision is this: In the absence of the affidavit of the teacher, which must accompany the check, is it such an instrument as is the subject of forgery? If the treasurer had paid the check, in the absence of the affidavit, he would have done so without authority, and against the law, and the check would have been no voucher to him in his settlement of accounts with the Commissioners' Court. This is not the case of the irregular or bungling execution of an instrument which is the subject of forgery, but it is a case of forging an instrument which, standing alone, is not such a completed instrument as to be the subject of forgery. Now, we are not to be understood as holding that this check is not the subject of forgery; but, to constitute it the subject of forgery, there must be the affidavit of the teacher accompanying it, for, in order to give it any force or effect, it requires both the check, properly signed and approved, and the affidavit, of the teacher. Without the affidavit of the teacher, standing alone, it is not the subject of forgery. Why? Because the statute says, "the check shall in all instances be accompanied by the affidavit of the teacher." The instrument by which a teacher, under the laws of the State of Texas, is authorized to demand and receive pay for his services, is a creature of the law. The terms of such an instrument are defined by the law, and, before he himself has such an obligation as he can make a legal demand for his services, he must have the instrument provided by the law. He cannot go with the check simply signed by a majority of the trustees, or by all of the trustees, and demand his salary. To have the completed instrument, and in order to make a legal demand, he must also have the approval of the superintendent and the affidavit provided by law. Then he has a complete instrument, and has a legal demand for his services. We cite the following cases as being in point, and having a direct bearing upon this subject: Roode v. State, 5 Neb., 174; Cunningham *Page 201 v. People, 4 Hun., 455; People v. Harrison, 8 Barb., 560; State v. Smith, 8 Yerg, 150; People v. Heed, 1 Idaho 531. We are not aware that the exact question here presented has ever been decided by our courts, but analogous questions have been decided in the courts of other States. In the case of Roode v. State, 5 Neb., 174, supra, it was held that a married woman's deed, without an acknowledgment, which, under the laws of the State where it was executed, made it void, was such an instrument as was not the subject of forgery. This case refers to Mr. Bishop, and quotes from him as follows: "An instrument, to be the subject of forgery, must, on the face of it, be good and valid for the purpose for which it was created." 2 Bishop's Crim. Law, 506. In the case of Cunningham v. People, supra, the prisoner caused to be engraved and printed what purported to be warrants drawn by the auditor of public accounts on the state treasurer of Mississippi, and bad a a seal made. He filled in the blanks of two warrants, but made no impression with the seal upon them. The warrants, by the law of Mississippi, were invalid without a seal, and it was held that the instruments, being invalid on their face, were not the subject of forgery, and it was further held that, if the statute authorizes an instrument not known to the common law, and so prescribes this form as to render any other form void, forgery cannot be committed by making an instrument in a form not provided by the statute, even though it is so like the genuine as to be likely to deceive most persons. In People v. Harrison, supra, it was held that an indictment would not lie for forgery of a certificate of acknowledgment of a deed, which certificate did not state that the grantor acknowledged the execution of the conveyance. It was stated that, in order to be the subject of forgery, a written instrument must, be valid, and, if genuine, for the purpose intended. If void or invalid on its face, it cannot be made good by averment. The crime of forgery cannot be predicated upon it. In Smith's case, supra, it is said that an instrument void in law upon its face is not the subject of forgery, because the genuine and the counterfeit would be equally useless, imposing no ditty or conferring no right; as the forgery of a will for lands, having only two witnesses, when three were required, where the court held the instrument void on its face and no forgery — referring to Wall's case, 2 East P. C., 953. These authorities support The view we take of the question involved in this case, and the judgment of the lower court is accordingly reversed and the cause dismissed.
Reversed and Dismissed.
HENDERSON, Judge, concurs.