OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.On original submission appellant successfully challenged the trial court’s adverse ruling on his motion to quash the indictment. That motion attacked the failure of the indictment to allege that the act “was done without the consent of the owner or other person entitled to give consent.” To the extent that old code cases address this issue, Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876, cited by the unanimous panel on original submission, is on point. The element of forgery under Art. 979, V.A.P.C. (1925) of “without lawful authority” has been brought forward in V.T.C.A., Penal Code Sec. 32.21(a)(l)(A)(i), which requires that the purported maker “did not authorize the act” of making the writing. Not only was the indictment here defective on the basis urged in the motion to quash, but under Smith it was fundamentally defective.
Although this prosecution was not for forgery by making under Sec. 32.-21(a)(1)(A), it was brought for forgery by possession with intent to utter under Sec. 32.21(a)(1)(C), which by reference expressly incorporates the elements of Sec. 32.-21(a)(1)(A) and (B). Simple use of the word “forge” in the indictment is insufficient to incorporate by reference the missing element. In Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590, a similar argument that the allegation of “unlawful” in a theft indictment was sufficient to supply the missing element that appeared in the statutory definition in V.T.C.A., Penal Code Sec. 31.03(b), was rejected:
“The allegation of ‘unlawfully’ pleads only a conclusion of law omitting the facts necessary to that conclusion.”
*468The State urges that the decision in this case is in conflict with Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469, and Jones v. State, Tex.Cr.App., 545 S.W.2d 771. The element found missing in the indictment in this case was not expressly considered in those cases. Jones discussed failure of the indictment to allege that the accused knew the instrument was forged, and Jiminez discussed, inter alia, the purport element. Although the language upholding the Jimi-nez indictments against a purport clause challenge does say that the instrument set out purported to be the “act of another who did not authorize the act,” it did so by relying on the “purport” rule that rests on setting out the forged instrument in the indictment in haec verba, and failed to address the fact that the “purport” and “unauthorized act” elements are separate and distinct. Furthermore, the Jiminez prosecutions were for forgery by making, so that the conflict between the allegation that the accused in fact made the instrument and the appearance from the face of the instrument set out haec verba that someone else made it was sufficient to supply the purport element under the haec verba rule. No such conflict arises in prosecutions for forgery by uttering or forgery by possessing with intent to utter.
The judgment on original submission is modified to the extent that prosecution under this indictment is ordered dismissed.
The State’s motion for rehearing is overruled.