I do not agree with the opinion of the majority reversing and dismissing this case, and will state my views.
Appellant insists that the indictment is defective, because the will was written during the lifetime of the testator, Bry Huckaby, and could have no legal effect until probated after his death; hence it was of itself void and of no legal effect, and would not, if true, have created, increased, diminished, discharged or defeated any pecuniary obligation; nor would it have transferred or in any manner have affected any property whatever; and was therefore not the subject of forgery, as required by law. And because the said will alleged to have been forged plainly shows upon its face that it is not a proper instrument to be admitted to probate in this, that the two subscribing witnesses thereto each have an inheritance under and by virtue of said pretended will, and said will could not be admitted to probate and otherwise be made to have any legal effect whatever, until one or both of said witnesses should renounce and relinquish his said interests thereunder; and hence said will is void. I will discuss these propositions in their converse order. Article 5348, Revised Civil Statutes, provides: "Should any person be subscribing witness to a will, and be also a legatee or devisee therein, if the will can not be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to so much of such share as shall not exceed the value of the bequest to him in the will." Article 5349 provides: "In the case provided for in the preceding article, such will may be proved by the evidence of the subscribing witnesses corroborated by the testimony of one or more other disinterested and credible persons, to the effect that the testimony of such subscribing witnesses necessary to sustain the will is substantially true, in which event the bequest to such subscribing witness shall not be void." These two articles dispose of appellant's contention that the will is void because the legatees in the will are subscribing witnesses, since said articles show that the will is not void by reason of said fact.
As to the other proposition. The agreed statement of facts shows that appellant was guilty of having in possession the forged instrument alleged, if the will is the subject of forgery during the lifetime of the testator. *Page 584
Article 530, Penal Code, provides: "He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever." Article 537: "By an instrument which would have transferred or in any manner have affected property, is meant every species of conveyance, or undertaking in writing, which supposes a right in the person purporting to execute it, to dispose of or change the character of property of every kind, and which can have such effect when genuine."
In order to ascertain the meaning of the above articles, it becomes necessary to review the common law on this question, and to ascertain therefrom by judicial construction, which the statutes expressly authorize, the legislative intent in enacting these articles, and as to whether these articles cover the forgery of a will, testator still living. Bishop Crim. Law, sec. 603, sub. 2, vol. 2, says: "It does not impair the criminality of forging a will that the supposed testator is living." Russell on Crimes, vol. 2, pp. 749-751, states: "The doctrine is established by several cases, that forgery may be committed by the false making of an instrument purporting to be the will of a person who is still living; notwithstanding the objection that during the life of a party his will is ambulatory, and can have no validity as a will until his death. Thus, a prisoner was convicted of forging a seaman's will, who, it appeared, was still alive, and had returned to England two years after the prize money had been received by the prisoner, under a forged will. (Citing Murphy's case, 10 St. Tri., 183, Hagr. ed.; 2 East P.C., chap. 19, sec. 43, p. 949.) In a subsequent case, where the prisoner was indicted for forging the last will and testament of a woman who was still living, and was a witness on the trial, and convicted, the judgment was respited upon a doubt whether. the supposed testatrix was living, the prisoner was legally convicted of having forged her last will and testament; there being no such instrument as a last will and testament, in contemplation of law, until after the death of the person making it; but the judges are said to have been unanimously of opinion that an instrument may be the subject of forgery, although in fact it should appear impossible for such an instrument as the instrument forged to exist, provided the instrument purports on the face of it to be good and valid, as to the purposes for which it was intended to be made. The point was again referred to the consideration of the judges, in a case where the prisoner was indicted and convicted for knowingly uttering and publishing as true a certain false and forged will and testament of one J.G., late a seaman belonging to a merchant vessel, etc., and it appeared that the said J.C. was living. All the judges held that the conviction was right. It was observed by the learned judges who delivered their opinion, that every will must be made in the lifetime of the party whose will it was; that it existed as a will in his lifetime, *Page 585 though it did not take effect till his death; and that the making of a false instrument importing on the face of it to be a will, was equally forgery, whether the person whose will it purported to be were dead or alive at the time of making it. That a contrary doctrine would operate as a repeal of the law; for if the act of making the will were not forgery at the time, a publication afterwards would not make it so. Buller, J., thought the very definition of forgery decided the doubt, for it was the making a false instrument with intent to deceive; and that here the intention to deceive had been established by the jury, and the instrument purporting to be a will was clearly false. On an indictment for forging a will, the probate of that will unrevoked is not conclusive evidence of its validity so as to be a bar to the prosecution. The same author says that it was an offense to probate the will of a nonexistent person. Patteson, J., in passing on the question, said: `There is nothing to limit the offense to the forgery only of the wills of persons that have existed, and it has been expressly held that forgery may be committed by the false making of the will of a living person.'"
In Archibald Crim. Prac. and Plead., vol. 2, p. 1639, we find this language: "Will, testament, codicil, or testamentary writing may be described in the indictment as a certain will, or a certain will and testament, or a certain codicil to a will, without saying of whom or the date or other particulars. Forgery may be committed of the will of a person who is alive; or the will of a person who never existed. Where upon indictment for forging a will, the prosecutor in the course of his evidence put in and proved the probate, and it was thereupon objected for the prisoners that this, whilst unrevoked, was conclusive evidence that the will was genuine and valid. Garrow, B., overruled the objection, and the prisoner being convicted, the judge held the conviction to be right."
Mr. Wharton in his excellent work on Criminal Law, sec. 682, says: "it need scarcely be said that whatever falls under the heads of bonds, deeds, commercial paper, or receipts and kindred writings may be the object of forgery at common law. For the purpose of detail enumeration, however, it may be mentioned that the principle has been specifially applied to bonds, deeds, to commercial paper of all kinds, to wills, etc.; and in fine to all written or other instruments which may be the foundation of a suit against another." Section 695 of the same work states: "A man may be convicted of forging the will of another who is still alive, as upon the latter's death, the will being genuine would be the basis of legal procedure." Section 714 says: "The fact that no person is at the time legally in a situation to be defrauded by the act is no defense, if there is a possibility of such fraud." Again in section 739: "It is not necessary, therefore, to the validity of the indictment that the forged instrument should appear to be one which could be used immediately as legal proof; it is enough if it can be so used at some future period. Thus an indictment is good which charges the forgery of a will of a living person, although such will could not be the foundation of legal process until after the death of the person whose name is forged." *Page 586
In McClain's work on Criminal Law, vol. 2, sec. 744, the common law definitions of forgery, as laid down by Blackstone, are given as follows: "The fraudulent making or altering of a writing to the prejudice of another man's right." Furthermore some English judges have spoken of it, "As the making of a false instrument with intent to deceive, but the deceit must involve danger of pecuniary loss; and it is suggested that the expression, `with intent to deceive in such manner as to expose any person to loss or the risk of loss,' would accurately express the idea." "Forgery of wills was early recognized as a crime; and it was held to be immaterial that the supposed testator was living, or that there was no such person as the one the instrument purported to be." Section 768 lays it down, "That it is not necessary that the injury be pecuniary; it is sufficient that the intention be to deprive the other of a legal right."
In Scott v. State, 48 S.W. Rep., 524, it was held that the intent to injure or defraud is only necessary; that the act need not injure. See also Howell v. State, 37 Tex.Crim. Rep.. And again in Lasseter v. State, 35 Tex.Crim. Rep., it was said that the deed, although not acknowledged, is the subject of forgery, though it may be necessary subsequently to take steps to make it valid.
In view of the above excerpts from the common law and authorities of this court, I will proceed to discuss the statutes of forgery as contained in our Penal Code. Would the forged will of a person still living come within the provisions of these articles? It will be noted from the above excerpts that it was so at common law. It will be noted that the intent to injure is the gravamen of the offense, even under our own authorities, as well as the common law. It will be noted from one of the above excerpts from the common law that the courts have held that wills are the subject of forgery under ordinary statutes similar to our own. If this forged will were a valid instrument, it would have transferred or in a manner have affected the property of the testator. Therefore, I believe that it was the subject of forgery, regardless of the testator being dead or alive; and, therefore, that appellant's contentions are not correct. Certainly if this instrument had been true, and had not been revoked by the testator or supposed testator at his death, the same would have transferred and to a large extent would have affected the property he might have left, and would have been a legal method to dispose of and change the title of property of all kinds belonging to the testator. To hold this instrument invalid would be to say there is no law in Texas, as held by the majority, for punishing a person for the forging of a will; and such a construction would lead me to the converse conclusion. Clearly, when the Legislature enacted these statutes they had in contemplation the forgery of wills as well as any other instrument that would change or affect property. This was the common law; and in the light of such construction said statutes were evidently adopted. In view of this fact, I think the clear legislative intent, as well as the words of these articles under consideration, make it imperative on this court to hold that the *Page 587 forgery of a will of a person living is forgery within the contemplation of our law.
In my opinion the indictment is properly drawn, and charges an offense against the laws of this State; and no error being manifested in the record, I believe the judgment should be affirmed.