Appellant was convicted for forgery, and his punishment assessed at confinement in the penitentiary for a term of two years.
The State was permitted to prove by Mrs. Huffmaster that Chestnutt, appellant's principal, made a new contract in regard to the piano subsequent *Page 109 to the alleged forgery, by virtue of which contract Mrs. Huffmaster and her husband executed new notes for the purchase price of said piano. Defendant was not present when the new contract was signed. Objections were urged on the ground that he was not present, and that this settlement was an indirect method of getting before the jury the opinion of Chestnutt and Mrs. Huffmaster that the note declared upon was a forgery. We believe that this testimony was not admissible, but further believe that it is not of such prejudicial character as to require a reversal. It is an undisputed fact, under the testimony, that the note declared upon was a forgery. Mrs. Huffmaster testified, as did her son, that it was a forged instrument. Defendant offered no testimony. Before executing the new contract, Chestnutt and Mrs. Huffmaster visited appellant in jail, taking with them the forged note. The result of this visit is not stated, but the new contract was then made; Mrs. Huffmaster retaining the piano. The admission of irrelevant or inadmissible testimony will not require a reversal unless its effect upon the defendant's case was probably injurious. The jury gave appellant the minimum punishment, and his guilt is placed beyond question. If the punishment allotted had been above the minimum, this error would have required a reversal, for in that event its operation might have been prejudicial.
The court charged the jury as follows: "If you believe from the evidence, beyond a reasonable doubt, that D.L. King, defendant, in Tarrant County, Texas, on or about the 6th of January, 1899, without consent or lawful authority of Mrs. M.I. Huffmaster, and with intent to injure or defraud, did make and sign the note or instrument in writing alleged and set out in the indictment read to you in this case, then notwithstanding the fact that Mrs. M.I. Huffmaster at said time was a married woman, and notwithstanding the further fact that said instrument in writing was not stamped with a United States revenue stamp, you will find defendant guilty as charged." The objections urged are (1) that the evidence showed that Mrs. Huffmaster was a married woman, and on such proof it was the duty of the court to instruct an acquittal; and (2) the instrument, not having been properly stamped, was not the subject of forgery. It is not necessary, in case of forgery, that the forged instrument be stamped. See Thomas v. State,40 Tex. Crim. 562. Nor was there error in instructing the jury that the instrument would be a forgery, notwithstanding Mrs. Huffmaster was a married woman. It is a fact beyond question that Mrs. Huffmaster was a married woman. This contention of appellant is based upon the theory that the act of a married woman in signing a note without the concurring signature of her husband is invalid and nonenforceable in law. Mr. Bishop, in his work on Criminal Law, says: "Sec. 533. The false instrument must be such as, if true, would be of some real or legal efficacy, since otherwise it has no tendency to defraud. In other words, it must either be in fact, or must appear to be, of legal validity, but it need not have both the appearance and *Page 110 the reality." In support of this proposition he cites many authorities collated in note 5 under above section. In section 538 he says: "A writing affirmatively invalid on its face can not be the subject of forgery, because it has no legal tendency to effect the fraud. Entering into this question is the distinction many times adverted to in these volumes, that every man is presumed to know the law, yet not to know the facts." So it will be seen that the distinction is clearly drawn between knowledge of law and knowledge of fact. If the instrument is void on its face, it can not be the subject of forgery, but if valid on its face, though invalid as a matter of fact or under the proof, it would still be the subject of forgery. In section 541 the same author says: "Since men are not legally presumed to know facts a false instrument good on its face, may work a fraud, though extrinsic facts show it to be invalid even if it were genuine. Therefore there may be forgery of such an invalid instrument." In People v. Galloway, 17 Wend., 540, 542, this language is found: "There is a distinction between the case of an instrument apparently void, and one where the invalidity is to be made out by the proof of some extrinsic fact. In the former case the party who makes the instrument can not, in general, be convicted of forgery, but in the latter he may." So with a fictitious person. "From this dictrine of a seeming validity sufficing, though it is not real, we have the further result that if the person whose instrument the forgery purports to be is dead, or if he is a mere fictitious person, still, as the question of the existence of such a person is one of fact, not of law, and the instrument appears valid on its face, the offense is complete." Bish. Crim. Law, sec. 543. In section 544: "(1) Restated, the ordinary doctrine is that, for the invalidity of the instrument to be a perfect defense, the defect must appear on its face, or, to exclude this sort of defense, it must appear on its face to be good and valid for the purpose for which it was created. In another aspect: (2) Evidence of fact. The instrument must be such that if it were genuine it would be evidence of the fact it sets out." We are not undertaking here to discuss instruments or writings uncertain on their face. So it has been held that, if there is a bare possibility that another may be imposed upon, a conviction will be sustained. State v. Dennett, 19 Law. Rep. Ann,, 395; State v. Gryder, 44 Law. Rep. Ann., 962, 11 So. Rep., 573. "It is immaterial whether the counterfeited instrument be such as, if real, would be effectual to the purpose it intends. If there is only a resemblance sufficient to impose upon those to whom it is uttered, or to the public generally, it is sufficient." 3 Chit. Crim. Law., 1035, 1039. "It is not necessary to the offense the instrument should be one which, if genuine, would be a binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the paper, to relieve from the character of forgery." 13 Am. and Eng. Enc. of Law, 2 ed., 1088; United States v. Turner, 7 Pet., 132, 8 L.Ed., 633. In the same volume (13 American and English Encyclopedia of Law) we find this language: "As *Page 111 a general rule, any writing in such form as to be the means of defrauding another may be the subject of forgery, or alterations in the nature of forgery." Page 1093, note 3, for collation of numerous authorities. "The writing need not be such as, if genuine, would be legally valid. If it is calculated to deceive, and intended to be used for a fraudulent purpose, this is enough." Notes 4 and 5, Id., for authorities. An instrument valid on its face is equally the subject of felonious forgery or felonious uttering, though collateral or extrinsic facts, of whatever character, may exist, that would render it absolutely void if genuine." Same authority, note 6, for authorities; People v. Rathbun, 21 Wend., 509; People v. Galloway, 17 Wend., 540; Russ. Crimes, 317-328; State v. Johnson, 26 Iowa 407; State v. Hilton, 35 Kan. 338, 11 Pac. Rep., 164; State v. Pierce, 8 Iowa 231 . To the same effect is Anderson v. State, 20 Texas Criminal Appeals, 595; and it follows the rule laid down by Mr. Bishop, supra. In view of these authorities, it will hardly be necessary to discuss the question further. If they are correct, this instrument is clearly the subject of forgery. The note does not show on its face to have been the act of a married woman. There is nothing to indicate that fact, and, in order to show she was a married woman, extrinsic facts were necessary. If the note, on its face, had shown her to be a married woman, we would have a different question, because in that event the instrument itself would have given notice of its invalidity. Caffey v. State, 36 Texas Criminal Reports, 198, is hereby overruled.
There was no error in refusing a continuance. If, in fact, Mrs. Huffmaster told Mrs. Crosby, or John McClain, or Mrs. Payne that she paid more for the piano than was in fact agreed to be paid, it would make no difference. She admitted making statements to the effect that the piano was a $400 piano, or perhaps cost $400, when in fact she only paid $275. But how this could affect the forgery of this note is by no means clear. If she had agreed to pay $400, or so stated, it would have been no excuse for the forgery, and no evidence of the fact, under this case, that the instrument was not forged. There is no contradiction of the forgery. As presented, there is no such error in the record as requires a reversal of the judgment, and it is affirmed.
Affirmed.