I concur with my brethren in the disposition of this case by the original opinion and the opinion on rehearing. However, *Page 10 I think it proper to say we have examined all the authorities cited by appellant in his brief and motion for rehearing and also those furnished in a supplemental list since the case was orally presented. Among them are the following: Millsap v. State, 43 S.W. 1015; Lynch v. State, 53 S.W. 693; Black v. State, 42 Tex.Crim. R., 61 S.W. 478; Carrell v. State,184 S.W. 190; Young v. State, 84 Tex.Crim. R.; 206 S.W. 197; Joiner v. State, 46 Tex.Crim. R., 80 S.W. 531; Belden v. State, 99 S.W. 563; Joiner v. State, 87 S.W. 1039; Whitmire v. State, 70 Tex.Crim. R., 156 S.W. 1179; Cagle v. State,44 S.W. 1097. The indictment in each of those cases was held bad for lack of explanatory or extrinsic averments, but it will be found that in all of them the court was not dealing with an ordinary commercial instrument.
In Carrell v. State, supra, which is strongly relied upon by appellant, a check was drawn on a named bank for a specified amount, immediately following which, in brackets, were the words "(Available School Fund)", the check being signed by two parties. The instrument was treated by this court as a check drawn on the bank against the school fund, and the indictment was held bad because there was no averment that the signers had authority to draw against the school fund. It is to be observed that the check considered there was not a negotiable instrument, whereas the check in the present case was negotiable. In 6 Tex. Jur., 609, it is said: "Obligations, such as warrants issued by a municipal corporation or a county are ordinarily not negotiable. As is the rule generally with respect to the assignment of non-negotiable instruments, an assignee takes such paper subject to all defenses held by the debtor in the absence of some circumstance of estoppel which prevents the debtor from setting up such defenses." See San Patricio County v. McClane, 44 Tex. 392; Lane v. Hunt County,35 S.W. 10; Lasater v. Lopez, 217 S.W. 373. I also quote from 6 Tex. Jur., page 604, as follows: "When payable to order or bearer a check is undoubtedly a negotiable instrument within the meaning of the Uniform Negotiable Instrument Act." See Commercial State Bank v. Harkrider-Keith-Cooke Company,250 S.W. 1069; Metropolitan Loan Company v. Reeves, 236 S.W. 762.
In Lasater v. Lopez, supra, the Supreme Court of this State, speaking through Chief Justice Phillips, said: "County warrants, such as it has been the custom of commissioner's courts throughout different periods of the State's history to issue in payment for public improvements, whether interest bearing *Page 11 or not, have not the character of negotiable instruments. This is the universal rule. It was so announced as to interest bearing warrants issued for the erection of a court house and jail, on both the first appeal of San Patricio County v. McClane, and in the later consideration of that case in58 Tex. 243. Such instruments are not intended to have the qualities of commercial paper, and do not possess them. County warrants serve, in general, as but a convenient mode for conducting the authorized business of the county. It would be disastrous to counties and municipalities to accord to instruments of such nature that attribute of negotiable bills which protects an innocent holder for value from defenses of which he has no notice." (Italics mine.) See also Speer v. State, 58 S.W.2d 95.
It is apparent that in reaching the conclusion in the Carrell Case that explanatory averments were necessary the court had in mind that the check drawn against the available school fund was not an ordinary commercial instrument. In the course of the opinion Judge Davidson said: "Before this money (referring to the money in the available school fund) can be paid out the proper steps must be taken and approved by the county superintendent. It may be the correct rule to state that it is unnecessary that the voucher or check or means of drawing money from the county available school fund should have gone through all of the steps legally prescribed in order to make the subject of forgery. If one legal step is taken that would be calculated to deceive, and that could be used even as evidence to sustain further steps that might be necessary under the authorities this might be sufficient. But it is useless to discuss those matters. This count does not undertake anywhere to allege anything in the way of innuendo or explanatory averments which shows the check to be legal. It is not the purpose of the writer to go into a discussion of just what innuendo or explanatory averments may be called for to make a valid indictment, or even that it can be made valid by explanatory averments. The purpose of the opinion, so far as the writer is concerned, is that whatever steps may be required by statute must be followed."
It is manifest that the holding in the Carrell Case does not militate against the conclusion here reached that the indictment in the present case is sufficient in the absence of explanatory averments. There the instrument was not an ordinary commercial instrument, while here the check, if genuine, is negotiable and is an ordinary commercial instrument under the decisions heretofore referred to. This being true, *Page 12 it follows that the indictment is sufficient without explanatory averments under the rule that such averments are not necessary "if the instrument in writing alleged to be forged is such on its face, as if true, that it creates or increases a pecuniary obligation, such as a check, draft, note or other ordinary commercial instrument, and will afford the basis of a civil action without resorting to extrinsic testimony." Branch's Ann. Tex. P. C., sec. 1398; Hendricks v. State, 26 Tex. Cr. App. 176, 9 S.W. 555; Reeves v. State,51 Tex. Crim. 604, 103 S.W. 894; Reeseman v. State, 59 Tex. Crim. 430,128 S.W. 1128; Carter v. State, 61 Tex.Crim. R.,136 S.W. 47; Davis v. State, 156 S.W. 1171; Cheesebourge v. State,157 S.W. 762. If genuine, the check would be the basis of a civil action without resorting to extrinsic testimony. I quote from 2 Tex. Jur., 639, as follows: "Under the statute (referring to paragraph 8 of Article 2010, R. S.) an answer is required to be verified if it sets up a denial of the execution by defendant himself or by his authority of any instrument in writing upon which the petition is founded. Generally, the effect of this provision is that one alleging liability upon an instrument signed by an agent need not prove the agent's authority, unless the answer denying authority — or proffering a plea of non est factum — is verified." Reid v. Reid, 11 Tex. 585, Godfrey v. Central State Bank, 5 S.W.2d 529, Missouri State Life Insurance Company v. Boles, 288 S.W. 271, Hunt v. Siemers, 53 S.W. 387, are cited in support of the text. The check was an ordinary commercial instrument, and, if genuine, would have afforded the basis of a civil action without resorting to extrinsic proof, save under the circumstances referred to in the preceding quotation.