Appellant was convicted of uttering or passing as true a forged instrument in writing, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.
Appellant made a motion to quash the indictment on several grounds, which was overruled by the court. In order to present the matter, we will set out the charging part of the second count, under which appellant was convicted, to wit: That Henry Huckaby, on or about October 21, 1898, "did then and there unlawfully and knowinngly and fraudulently have in his possession, with intent to use and pass the same as true, a false and forged instrument in writing, to the tenor following: `In the name of God, Amen. I, Bry Huckaby, of Dew, Texas, Freestone County, do hereby make, publish and declare this my last will and testament, hereby revoking any and all wills heretofore made by me. First. I direct my executors hereinafter named, to pay my funeral expenses, and all my just debts and liabilities as soon as can be done after my decease. Second. I give and bequeath to my son, Bry, and daughter Mary's heirs, executors, administrators and assigns forever, two-thirds of my real estate, except my grandson Henry, who is exempted. Third. I give and bequeath to my wife Easter, the remaining one-third of my real estate, the same to contain my dwelling house and the improvements around the same. Fourth. I further agree to give my wife Easter all of my personal property after my debts and other liabilities are paid. Fifth. I hereby appoint my wife, Easter, executrix, and my son, Bry, executor, of this my last will and testament. In witness whereof I have hereunto subscribed my name and affix my seal, his this 2nd of July, 1897. Bry Huckaby. mark (Seal.) Signed, sealed and published and declared by the said Bry Huckaby, as and for his last will and testament, of us, who at his request in the presence of him and of each other have hereunto subscribed our names as witnesses. Mary Wilson of Corsicana, Texas. H.E. Huckaby, Luna, Texas.' Against the peace and dignity of the State."
Appellant insists that the indictment should have been quashed, because it is not alleged in said count that it purported to be the act of Bry Huckaby; that is, the act of another person than appellant. As a matter of fact there is no such allegation in the second count, and we are not authorized to bring this allegation forward from the first count. In Anderson v. State, 20 Texas Crim. App., 595, which was a case of forgery, the court appears to hold that this averment is necessary. However, in that case the allegation was contained in the indictment, and the question was not before the court. Ruddy's case, 58 S.W. Rep., 1007, follows the above case; but holds that while it is necessary to allege that the act purported to be that of another than defendant, it is not necessary to state the name of such other person alleged to be forged. In *Page 581 Webb v. State, 39 Tex.Crim. Rep., the court went still further and held in a forgery case, that the indictment need not allege that it was the act of another where the instrument was set out in the indictment according to its tenor. This case cites Thurman v. State, 25 Texas Crim. App., 366, which is authority for holding, in a charge for uttering a forged instrument, it is not necessary to allege that it purports to be the act of another, where the instrument alleged to be forged was set out according to its tenor. From this statement it seems that the authorities on this subject are in a state of some confusion. We believe under our system of pleading that the last two cases announce the correct doctrine. Of course, there might be a case where there was similarity of names between that of the alleged forger and the party whose name is charged to have been forged; and in such case it might be necessary to allege that the forged instrument purporting to be the act of another than the party charged with forging the instrument. We accordingly hold that the indictment is good as to this objection.
Appellant also questions the indictment because it does not import an obligation on its face, and if it was the subject of forgery this should be shown by extrinsic and explanatory averments. It is the rule in this State, where the instrument does not show on its face that it imports an obligation in regard to money or property, but is the subject of forgery, and can be shown to be such by extrinsic averments, that these extrinsic or explanatory averments must be alleged. See Cagle v. State,39 Tex. Crim. 112; Womble v. State, 39 Tex.Crim. Rep.; Crawford v. State, 40 Tex.Crim. Rep.; Colter v. State,40 Tex. Crim. 165; Black v. State, 42 Tex.Crim. Rep.. The instrument here, which is charged to be the subject of forgery, is not one of the ordinary instruments used in commercial transactions, such as a note, draft, bond, contract, etc., but purports to be the will of Bry Huckaby. Before this paper could have the effect to create or discharge a pecuniary obligation, or transfer or in any manner affect any property, certain facts would have to be proven; that is, that the alleged testator was possessed of an estate subject to be devised by will. And we also believe, as will be shown hereafter, it would have to be proven that he was dead at the time of the alleged forgery. None of these matters are alleged in the indictment. We believe it was defective on this account. We understand it to be conceded in the statement of facts that the testator was alive at the time of the alleged forgery; nor is there anything in the agreement that he has since died. The agreement appears to indicate that he was still living at the time of the prosecution.
Appellant insists that, under these circumstances, the alleged instrument purporting to be the last will of Bry Huckaby could not be the subject of forgery, and per consequence could not be held for passing or uttering as a forged instrument. In Johnson v. State, 9 Texas Crim. App., 249, it is held that although an instrument may not be the subject of forgery at the time it is made, yet if subsequently a law is passed which makes such an instrument forgery, and it is subsequently uttered, a prosecution *Page 582 for passing the same as true may be sustained. If it be conceded that this decision announces a sound doctrine, and is applicable to a case of this character, then it would follow, if the will could not be forged during the lifetime of Bry Huckaby, but it might become the subject of prosecution for knowingly having same in possession with intent to pass it as true after his death; in such case the death of said Huckaby must be alleged and proven in order to sustain a conviction. The death of said Huckaby is not shown in the agreement, and consequently there can be no illegal uttering of the will, much less having same in possession, with intent to utter; as we believe no one will contend that the will had any legal efficacy to affect property during the lifetime of the alleged testator, and could only affect property under certain formalities after his death. Rev. Civ. Stats., arts. 53, 54, 55, 1842, 1884, 1904, 1906, 1905, 1907. The above cited articles show statutory formalities which must be observed in order to give a will any legal efficacy or standing for the purpose of transferring or affecting property.
However, the most important question raised by appellant is that, under our statute, a will is not the subject of forgery during the life of the declarant. In England, as we understand the authorities, it is distinctly held that forgery can be committed by falsely making the will of a living person. See 2 Russell on Crimes, 748. We are cited to a number of cases in the text writers which support this view; but the cases cited are mostly if not all English cases. These cases would only be persuasive if under a definition of forgery similar to our statutory definitions of that offense. But, as we understand the English or common law definition of forgery, the instrument must be such that, if genuine, it would be apparently of some legal efficacy (2 Bishop Crim. Law, sec. 523); and it is not necessary, as under our statute, that the instrument must be such that, if the same were true, it would have created, diminished, discharged or defeated any pecuniary obligation, or would have transferred or in any manner have affected any property whatever; the injury intended must be such as to affect one pecuniarily or in relation to his property. See arts. 36, 37, Penal Code. It will be noted that all the provisions of our statute are used in the past and the present tenses; that is, the language is, "would have created," "would have transferred," and do not depend on some future contingency in order to give them legal efficacy. Now, can it be held that the will, if genuine, during the lifetime of the testator would have the effect, in presenti, to create or discharge any pecuniary obligation, or to transfer or affect any property whatever. It is essentially ambulatory during the lifetime of the declarant, subject to his revocation at any time, and can not possibly take effect until his death. Being such an instrument we hold that it is not the subject of forgery, where the making of the instrument occurs during the life of the testator. It is hardly necessary to observe that all our offenses are purely statutory; and the statute must clearly define and cover the offense before a prosecution can be maintained. We can not have recourse to the common law to make out an offense. Rogers v. State, 8 Texas Crim. App., 400. As *Page 583 in our forgery law, defects in the past have been discovered and amended by the Legislature, so as to embrace matters not theretofore criminal, we here call the attention of the Legislature to this matter in order that the statute with reference to forgery may be amended so as to embrace wills, if deemed necessary.
For the errors discussed, the judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.