Appellant was convicted of forgery, and given two years in the penitentiary, and from the judgment of the lower court he prosecutes this appeal. The appellant on the trial of the case interposed a plea of former jeopardy, which was struck out on motion for the State. The plea showed an indictment, with the proceedings in the trial and acquittal of the defendant for the passage of the same instrument alleged to have been forged in this case, and he claims that it was a good plea, and ought to have been sustained. The grounds of his plea are based on the amendment to title 14, Chap. 1, of the Penal Code, which added thereto article 450a (New Penal Code, 549a). Article 450a provides, in substance, that a conviction for forgery, uttering a forged instrument, or attempting to utter a forged instrument, shall be a bar to any other prosecution under said articles, based upon the same transaction, or the same forged instrument of writing, etc. The court did not err in sustaining the motion of the State in this case. If it be conceded that this law, which was passed after the indictment was found and the trial had in the former case, could have any effect, still the court did not err, because the record showed an acquittal, and the statute makes only a conviction a bar to a prosecution for any of the other offenses mentioned. Appellant made a motion to continue this cause on the ground of the absence of one T.J. Green. It appears that T.J. Green was the father of the defendant, and lived in Brown County, and that process of attachment was issued on the day after the indictment *Page 113 was found in this cause, and when the case was called for trial said process had not been returned into court. If the testimony of this witness was material, the diligence to procure his attendance must be conceded. The question then occurs as to the materiality of his evidence. Appellant says in his application that he expects to prove by said witness that this defendant was unmarried, and was then a member of the said T.J. Green's family; that after the alleged forgery this defendant went immediately and directly from Jones County to said T.J. Green's home, in said Brown County, and immediately after his arrival at his said father's, defendant informed him that he was out of money, and owed the amount of this instrument alleged to have been forged, and asked where he could get work, out of which to obtain money enough to pay said amount, whereupon said T.J. Green advanced said defendant money enough to pay said note, and the defendant sent the money to R.V. Colbert in payment thereof; that defendant expects to prove by said witness, T.J. Green, that he made arrangements to pay said note long before the same became due. In passing on the correctness of the ruling of the court on the motion for continuance, which, by the statute, is within the discretion of the court, we will examine the question as it came before the court on motion for a new trial. There it appeared from the testimony of the State that the defendant, without any authority on the part of the two Spraberrys and Partin, whose names are alleged to have been forged to the note, signed their names to said note. The defendant himself admitted in his testimony that he signed the names of the said parties to said note, and that they had not authorized him so to do. He testified further, in this connection, in relation to what happened between him and his father when he went to Brown County, "I got home on December 22, 1894, and next morning went with my father, T.J. Green, to Brownwood, and was arrested. I got the ten dollars from my father after I was arrested, and mailed my letter to Mr. Colbert, with the money order to pay the note. I had come to town to send him the money that day, and was arrested before I had mailed the letter. I intended to get work when I got home, to pay the note, and knew, if I did not succeed in getting work, I could get the money from my father, T.J. Green, with which to pay the note." Appellant attached to the application for continuance a letter from his father, which contains what he would testify to. Said letter is as follows, to-wit: "Brownwood, Texas, Feby. 3rd, 1896. Mr. J.F. Cunningham — Dear Sir: I am looking for my wife to be confined every day, and I can't be at court unless she gets so I can leave her time enough to get there on the second Thursday. If I can possibly leave her I will come. You can prove by me, Ed asked me next day if I knew where he could get any work; that he had left out there, owing $16. Yours truly, [signed] T.J. Green." The testimony of the defendant does not even show that he mentioned the matter to his father at all until after he was arrested. It shows that he intended to get work after he got home to pay the note, *Page 114 and that he knew that if he did not get work he could get the money from his father with which to pay the note. The letter of his father does not show that he made any such statement to him in regard to the transaction, but merely states that his son, when he came home, asked him if he knew where he could get work; that he had left Jones County, owing $16. This evidence, in our opinion, establishes no defensive matter that could avail the defendant. It does not tend to show that he signed the names of the parties to the instrument in question with any semblance of authority; nor does it indicate that there was no design to defraud, on the part of the defendant, at the time he signed the names of the said parties to the said note. If he could have even proved what he alleged in his application, which the developments on the trial negative, still that would have been no defense, but merely a future transaction which would tend, in connection with the other circumstances in this case, to show that when the instrument was forged he did not then entertain the intention to injure or defraud. When the person signs the name of another person to an instrument, pledging the other person to pay money for him, unless it is with authority, or some semblance of authority or right, to sign the name of such other party, it will be no answer to a charge of forgery for him to say that he expected to pay off the obligation himself, or that he expected to get the money from some other person with which to meet the obligation. Appellant excepts to the refusal of the court to give the special charges asked by him to the jury. Said special charges are as follows: "(1) That, before the jury would be authorized to convict the defendant of forgery as charged, they must believe from the evidence, beyond a reasonable doubt, that the defendant, at the time he signed W.C. Sprabery, C.H. Partin and Jack Sprabery's names to said instruments, that he did it with intent to defraud and injure;" and "(2) that while it is not necessary, to constitute the offense of forgery, that some one must be injured or defrauded, it is necessary that the acts constituting the forgery, if any, must have been done with intent to injure and defraud." The court, in its charge to the jury, instructed them that, before they could convict the defendant, they must believe that he signed and added the names of said persons to said note without their authority and consent, and with intent to defraud. This put the onus upon the State to prove that the forgery was made with intent to defraud, and was sufficient, and it was not necessary to give the charges asked on this subject. Appellant also objects to the following charge of the court: "The false making of an instrument, to constitute forgery, must be done with intent to injure or defraud, and the injury must be such as affects one pecuniarily, or in relation to his property. But it is not required, in order to constitute this offense, that the accused, in committing the offense, intended to injure or defraud any particular person, or that any particular person was injured or defrauded by the forgery, but it is sufficient if it appears that possibly some one might be injured or defrauded thereby." Appellant claims that said charge announces incorrect rules of law, and misapplies the same to this case; that *Page 115 it is a charge upon the weight of the testimony; and that under it they could find the defendant guilty without believing that the defendant, at the time he signed said names, entertained the intent to injure and defraud. In this case, as stated before, there is no question that the defendant signed the names of all of said persons without any knowledge or authority on the part of either of such persons. The testimony that he had, some six months before, worked for one of the Spraberrys, and that while working for him he was in the habit of buying goods for himself, and having the same charged to said Spraberry, does not afford even the semblance of implied authority to sign his name to the note. How the announcement of a legal proposition, as follows, "That it is not necessary, in order to constitute forgery, that any particular person was injured or defrauded by the forgery, but it is sufficient if it appears that possibly some one might be injured or defrauded thereby" — which is a correct enunciation of the law — could inure to the injury of the appellant, we fail to see. In Henderson v. State, 14 Tex. 503, it is said, "It is not required of the State to prove that the intention of the accused in committing the forgery was to injure or defraud any person in particular, or that any particular person was injured or defrauded by the forgery, but it is sufficient if it appears that possibly some one might be injured or defrauded thereby." And, to the same effect, see 8 Amer. and Eng. Ency. of Law, pp. 459-461, and authorities there collated. If the instrument itself, from its nature, was not calculated to injure or defraud any person, it would not be the subject of forgery, or if the circumstances attending the making of an instrument were such that the intent to injure or defraud any person does not appear, there is no forgery; but the signing of the names of other persons to an instrument which imports a pecuniary obligation on its face, without any authority or semblance of authority from the persons whose names are signed to the same, and the uttering of same, establishes certainly the possibility of injury to such other persons, and about this there can be no question, and, as stated before, it is no answer if the party shows that he expected to pay off the obligation himself, or to procure some one else to do it. In our opinion the charge of the court as to the defendant's going to Brownwood, and what he did there, was not calculated to injure the defendant. The charge, in fact, was more liberal on his behalf than the law authorizes. There being no errors in the record, the judgment is affirmed.
Affirmed.