Appellant in his motion for a rehearing insists that we erred in holding the indictment in this case sufficient to charge an offense against the law, because it does not appear from the alleged forged instrument that Williams had authority to act for and on behalf of the Banner Creameries in signing its name thereto, and that the indictment should have averred that Williams had the authority to thus bind the Banner Creameries. *Page 8
Does the instrument purport to be the act of Banner Creameries without the word "by" preceding the name "C. O. Williams?" We think so. The word "by" would be implied, not as constituting an element of the offense, but in giving verity to the instrument and clothing it with the appearance of an obligation on the Banner Creameries to pay a certain sum out of its payroll account. If it had that appearance, if it conveyed that idea and was calculated to defraud, it was sufficient to predicate a charge of forgery thereon without any explanatory averments in the indictment. It need only purport to be the act of another; in this case the act of the Creameries Company.
In the case of Brown v. State, 60 Tex.Crim. Rep., in an opinion by Judge Ramsey, a check in substantially the same form as this one was held to be a subject of forgery without the aid of any explanatory averments. We quote the check:
"Orange, Texas, Feb. 1910. __________ No.
$10.00
"The First Orange Bank of Orange, Texas.
"Pay to Herbert Brown or bearer ten __________/ 100 Dollars.
"The Cameron Live Stock Co.
"Andrew Lemaire."
Although this indictment was not attacked on the specific grounds as the one in the instant case, nevertheless the court held that such indictment properly charged a violation of the law. To the same effect is the holding in the case of Brod v. State, 42 Tex.Crim. Rep.. To the same effect is the holding in the case of Howard v. State, 37 Tex. Crim. 494, the forged instrument in that case being as follows:
"Houston, Texas, Feby. 7, 189_ No. 201.
"Planters' Mechanics National Bank pay to P. Howard, or order ($25.00) twenty-five dollars.
"John Finnigan Co."
in which case an indictment merely setting forth the instrument alleged to be the subject of forgery, signed John Finnigan Co., was held sufficient to charge this offense.
We do find an authority of another state that seems to us to be in point relative to the proposition that where the name of another had been signed by an agent it was a representation therein by the one who utters or passes the instrument that the relation of principal and agent existed at that time, and thus abrogated the necessity of alleging or proving the *Page 9 relationship of principal and agent. We refer to a Minnesota case, — State v. Fay, in the 83 N.W. Rep. 158. The instrument therein alleged to be forged reads as follows:
"June 19th, '99. Deer River Minn.
"P. McDonald, of Duluth, Minn., pay to Matt Fay or order sixty-five dollars and thirty-five cts., for labor at Cedar Camp. "P. McDonnell, by John McDonnell."
The specific objection was raised to this indictment that is the point at issue in this instant cause, and the Supreme Court of Minnesota held relative thereto the following: "Therefore a representation that the instrument is genuine necessarily includes a representation that John McDonnell was authorized to execute it for P. McDonnell. Now, when the defendant uttered the instrument as true, knowing it to be forged, he thereby represented and affirmed that the agent purporting to execute it for his principal had authority so to do. He is bound by his own representations and it was not necessary to allege in the indictment or prove on the trial such agency. Were it otherwise, all that it would be necessary for a party putting off forged paper to do in order to escape conviction would be to deal in such paper only as purported on its face to be executed by an agent for his principal, but who in fact had no authority to represent the principal in any case. It follows that an indictment for uttering as true forged paper purporting on its face to have been issued by an agent in the name of his principal, which sets out the instrument in haec verba, need not aver the authority of the agent. State v. Goodrich,67 Minn. 176, 69 N.W. 815; State v. Riebe, 27 Minn. 316, 7. N.W. 262; Cross v. People, 47 Ill. 152. The indictment in this case falls within this rule, and states a public offense."
We think that the gist of this offense is located in the signature of the Banner Creameries, and a charge on their payroll account, regardless of by whom such shows to have been made, and in the fact that this instrument purported to be the obligation of such Creameries and not the obligation of Mr. Williams, whoever he might have been, and having been set out in haec verba, according to the above authorities, it was sufficient to charge an offense against the law without further averments, and thus believing we think the motion is without merit, and it is accordingly overruled.