In both oral and written arguments counsel for appellant has attacked the original opinion in this case, mainly upon the ground that the instrument declared upon and set out in the indictment is not such an instrument as can be made the basis of a charge of forgery under our statute, and that said instrument is void upon its face, is not negotiable under the law merchant, and is not a pecuniary obligation within the meaning of our statute on forgery. All of these questions were fully discussed in the opinion of the court in the case of Carrell v. State,79 Tex. Crim. 198, 184 S.W. Rep., 217, which was another case against appellant on a charge of forgery of an instrument which was substantially to the same effect as the one involved in the present case. In the case just referred to this court held the indictment defective on the ground that it did not contain certain innuendo averments necessary to its validity, but held that the indictment was otherwise sufficient.
In the present case the indictment contains the innuendo averments necessary to meet the objections pointed out in the opinion in the *Page 564 former case. Both in the former case and in this one, appellant was charged, not with having forged the instrument itself, but with having forged the endorsement on the back thereof. The indictment in both cases based the charge of forgery upon the unlawful and fraudulent making of the endorsement on the back of the instrument.
In Carrell v. State, supra, it was held, in effect, that the instrument set out in the indictment in that case was not void so as to prevent it from being the subject of forgery, and that the endorsement on the back thereof, if genuine, would have affected the indorsee pecuniarily, and have created a legal pecuniary obligation on his part. On the authority of that case, the soundness of which we do not question, the contentions of the appellant must be overruled.
In neither the oral argument before the court on rehearing, nor in the written argument filed herein, does the appellant mention or discuss the case of Carrell v. State, supra, but appears to have wholly ignored the decision in that case, although directly in point, and for us to now sustain the contentions of appellant would require the overruling of that case, which we are unwilling to do, believing that the legal principles involved were correctly decided.
In the original opinion in this case, the authorities cited by appellant were reviewed, discussed and distinguished, and besides, those authorities were decisions of the courts of other States, and are not controlling over the decisions of the courts of this State.
We do not doubt that the instrument declared upon, and set out in the indictment is a pecuniary obligation — one having money for its object — within the meaning of our statute on forgery. Neither do we doubt that the false and fraudulent making of the endorsement on the back thereof would, if genuine, have created a pecuniary obligation, and may properly be made the basis of forgery under our statute.
These questions were fully discussed in the case of Carrell v. State, supra, and in the original opinion in this case, and were, we believe, correctly decided, which necessitates the overruling of appellant's motion for rehearing, which is accordingly so done.
Overruled.