It is alleged in the indictment that appellant "* * * without lawful authority and with intent to injure and defraud did wilfully and fraudulently make a false instrument in writing to the tenor following:
"21631 $511.65
"The Treasurer of the County of Uvalde
"State of Texas.
"Will pay to J. W. Graham or order the sum of Five Hundred Eleven 65/100 Dollars out of the __________ Fund, being the amount allowed *Page 105 by the County Commissioners Court, of said County at their Sept. Term, 1927.
"Witness my hand and Seal of said Court at Uvalde, Texas, this 12 day of Sept. 1927.
"J. W. Graham, County Clerk.
"(Seal) __________, Deputy.
"For Bill — Transcribing Record D.
"Min Book __________, Page __________
"No. __________ __________ Class
"Registered the __________ day of __________ 192_
"__________, County Treasurer."
In the Penal Code, article 979, forgery is defined as follows: "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."
It may be conceded at the outset that appellant made the instrument in question without authority, because the commissioners court had only approved appellant's account for $11.65; it may be further conceded that under the facts proven he made the instrument with intent to injure and defraud. All this may be true and yet appellant cannot be guilty of forgery unless the instrument "purported to be the act of another." Article 8, P. C. provides that all words, terms or phrases used in the code are to be taken and construed in the sense in which they are understood in common language unless their meaning is specially defined. The ordinary meaning of "another" is: "Not the same, different, any or some other, any different person, and one else, some one else;" most definitions having reference, in the ordinary use of the word, to some other person. The Legislature knowing that such would be the meaning ascribed to such word in the definition of forgery, and desiring that it have in that respect a broader signification, provided in article 988, P. C., as follows: "The instrument must purport to be the act of 'another,' and within the meaning of this word, as used in defining forgery, are included this State, the United States, or either of the States or Territories of the Union; all the several branches of the government or either of them; all public or private bodies, politic and corporate; all courts; all officers, public or private, in their official capacity; all partnerships in professions or trades; and all other persons, whether real or fictitious, except the person engaged in the forgery."
Bearing in mind the last sentence of said article the meaning seems clear that "another" does not refer to the person engaged in the forgery, but means that if the person engaged in the forgery makes an instrument *Page 106 purporting to be the act of any of the agencies of government, courts, or officers named in the article it would purport to be the act of "another." If a third party had made the instrument and signed appellant's name as county clerk, it would have purported to be the act of "another." In the opinion of the writer the statute has no application to appellant's own act in signing his name in his official capacity. There is much similarity between such an act and one in which a party signs to an instrument the name of his principal by himself as agent. (See recent case of Simms v. State, 116 Tex.Crim. Rep.,32 S.W.2d 852). The order of the commissioners court approving appellant's account for $11.65 was the act of the court. If appellant had made an instrument purporting to be an order of said court approving the account for the sum of $511.65, such instrument would have purported to be the act of "another" in contemplation of the statute. The instrument declared on does not purport to be the act of the court. It does purport to reflect what the court had done, for it says, "being the amount allowed by the county commissioners court of said county at their Sept. term, 1927," but further than that it does not go.
If appellant had written a letter directed to the treasurer of the county advising him that the commissioners court had allowed appellant's account for $511.65, and advising the treasurer that he was thereby authorized to pay such amount to appellant and had signed the letter in his official capacity, who would have contended that the instrument purported to be anything more than the act of appellant as the clerk? Does the instrument declared on go further than that? If the drawer of the indictment in the present case had followed the form which is sometimes used, and had alleged that appellant, without lawful authority, had made a false instrument in writing purporting to be the act of another, to-wit, the act of the commissioners court of Uvalde county, and had then set out the instrument by its tenor, as now copied in the indictment, there would have immediately appeared a repugnance between the purport clause and the tenor clause of the indictment. On the other hand, suppose it had been alleged that appellant made a false instrument in writing purporting to be the act of the county clerk, and then set out the instrument declared on. It would have been immediately discovered that the indictment was bad because the instrument declared on was executed by the very person whom the purport clause declared to have been "another." The alleged forged instrument was either the act of the commissioners court or it was the act of appellant in his capacity of county clerk. By no sort of legerdemain can the signature of an officer in his official capacity be said to have been the act of the individual independent of the official capacity in which he assumes to act. If A held a commission as notary public could he take his own acknowledgment to a deed executed by him and contend that the acknowledgment was legal because A as an *Page 107 individual was an entirely different person from A as a notary public?
We regard as directly in point the case of Mann v. People, from the state of New York, which has a statute similar in all respects to ours in the particulars here being investigated. The case will be found reported first in volume 22 of the Supreme Court Reports of the State of New York (15 Hun.) 155. Mann was indicted for making the following instrument:
"No. ____ "Saratoga County Treasurer's Office, "Ballston Spa, June 16, 1875.
"In pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga County, the county of Saratoga promises to pay, at the Saratoga county treasurer's office, on or before the 15th day of February, 1876, to First National Bank, Ballston Spa, or bearer, ten thousand dollars, at seven per cent interest, for value received.
"$10,000. "Henry A. Mann, Treasurer."
The New York statute under which the indictment was drawn provides that a person should be guilty of forgery, who, with intent to defraud, makes "* * * an instrument in writing,being or purporting to be, the act of another, by which a pecuniary demand or obligation shall be, or shall be purported to be, or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are purported to be, or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected."
The Supreme Court of the State of New York, in discussing the question, says: "* * * The counsel for the people urges that the writing in this case purports to be the act of another, viz., of the county of Saratoga, and that it was falsely made by the prisoner. That argument was used in Regina v. White (ut supra), as appears by the report: 'Pollok, C. B. It purports to be the name of a party, written by his authority, and it is his name, written without that authority. Willmore (for the prisoner): Rather it purports to be the writing of the prisoner, and it is so.' And so the court finally held. Now, it is true that so far as civil obligations and rights are concerned, we are accustomed, in order to express the binding effect of an agent's acts, to say that the act of the agent is the act of the principal. This is a convenient way of stating, in brief language, that, when an agent is authorized, his act binds, not himself, but his principal, just as if it were the act of the principal. But we do not mean that the act is literally that of the principal. The instrument in question purported to be the act of Henry A. Mann. It may be that it purported to be legally binding on the county of Saratoga. But the act, — that is, the doing the physical act as distinct from the legal effect — was the act of the prisoner. There is undoubtedly a sense, as urged by the counsel for the people, in which such an instrument may be *Page 108 said to purport to be the act of the county. But that is a statement of the legal effect. As a matter of fact, the instrument purports to be the act of Mann. He signed it in his own name, adding the title of his office — an office which he legally held."
The Supreme Court of the State of New York held Mann not to be guilty of forgery and reversed the judgment of conviction. Not being satisfied the People appealed. The result of that appeal will be adverted to later, but we desire first to call attention to the similarity of the cases. In Mann's case he as treasurer certified that the warrant or certificate would be paid or was authorized "in pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga county." In the present case appellant, as county clerk, in effect certified that the sum of $511.65 was the "amount allowed by the county commissioners court of said (Uvalde) county at their September term, 1927." Now, reverting to the opinion of the Court of Appeals of New York, People v. Mann,75 N.Y. 484, 31 Am. Rep., 483, the court said: "We cannot adopt the interpretation of this statute claimed by the counsel for the People. He contends that one who without authority makes an instrument purporting in its body to be the contract or obligation of a county, though he signs his own name to it as the official representative of the county, comes within the purview of the act. That the words 'purporting to be the act of another' are synonymous with 'purporting to be the contract or obligation of another.' We think that the 'act' referred to in the statute is the making of the instrument, and that the offense consists in falsely making an instrument purporting to be made by another. The offense intended to be defined by thestatute is forgery, and not a false assumption of authority.One who makes an instrument signed with his own name, butpurporting to bind another, does not make an instrumentpurporting to be the act of another. The instrument shows uponits face that it is made by himself and is in point of fact hisown act. It is not false as to the person who made it, although by legal intendment it would, if authorized, be deemed the act of the principal, and be as binding upon him as if he had actually made it. The wrong done, where such an instrument is made without authority, consists in the false assumption of authority to bind another, and not in making a counterfeit or false paper." (Italics ours).
The principle recognized and discussed by the New York courts will be found to have been approved in State v. Wilson,28 Minn. 52, 9 N.W. 28; State v. Taylor, 46 La. Ann., 1332,16 So. 190, 25 L. R. A., 591, 49 Am. St. Rep., 351.
Although appellant may not be guilty of forgery the state is not remediless. Article 359, P. C., provides: "If any such clerk shall give a false certificate, stating that any person has done any act whatever, to which he has a right to certify, or that such person is entitled to any *Page 109 right whatever, when such clerk may by law give such certificate if the same were true, he shall be punished as directed in the preceding article."
From what has been said it appears that the writer is of opinion that appellant can not be held guilty of forgery, however reprehensible his conduct may have been, and that the motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court should be reversed and the cause remanded.
Reversed and remanded.