ENEEAI.
Grover Sellers
Hon. Winston P. Brummett Opinion No. O-6567
County Attorney Re: Under the facts set forth,
Dickens, Texas which articles under our Penal
Code have been violated; forg-
ery; swindling or theft by
Dear Sir: false pretext?
Your recent request for an opinion of this depart?
ment reads, in part, as follows:
“‘What, or which, articles under our Penal
Code has been violated under the following fact
situation? Forgery? Swindling? or Theft by false
pretext? 1
MFACTS:
“An individual with the same name of another
who had a bank account in a local bank, intercepted
the .second party’s bank statement through the mails
and discovered a bank balance in said second party’s
account ; accused cashed 3 small checks which were
accepted by said bank then proceeded to che,ck out
the balance of said account in the approximate sum
of $1700, in the presence of the cashier of the bank
and signed the same in his presence and’did receive
said money; upon being asked by said bank employee
as to how she managed to have so much money in the
bank, she stated, ‘My husband and I made it .* The
accused did not misrepresent her name to any one,
she did not try to conceal her true Identity she
did not try to imitate the signature of the true
claimant of such bank account, but from all the evi-
dence it would appear that she realized she didn’t
have a bank account; she had had an account with
such bank in 1942, but had closed the same out that
same year and hadn’t had an account since. The 3
small checks above mentioned were all signed in ac-
cused own handwriting and with her own true name.”
After a careful consideration of the above facts,
we have concluded the accused may be guilty of both the of-
fense of forgery as defined by Article 979, V.A.P.C. and
swindling by passing a worthless check under Article 567b,
V.A.P.C.
Han, Winston P. Brummett, page 2
Section 1 of Art. 567b reads, in part, as follows:
Vet. lo It ;4 1 be
with intent to defraud. to obtain anv m n Y._ goods,
services, labor, or other thing of valug iv givinp~
or dr awina Y check draft! or order uw n anv bank+
person, firFor corporation J fsc u h beEson does not,
at the time said check, dra ht or order is so given
: or drawn, &ve sufficient fun s ith su ch bank , per-
son, firm or corporation to pay %ch check, draft,
or order and all other checks, drafts, or orders
upon sai ?i funds outstanding at the time such check,
draft, or order was so given or drawn/ ***‘I (Empha-
sis added)
The elements of the above defined offense would appear
to be present under the instant facts, in that the accused pre-
sented her check for payment, knowing at the time she maintained
no deposit with said bank, and that the check was worthless.
This transaction when completed manifested the accuseats ever
present intent to defraud. (See Kuykendall v. State 160 S,W.2d
525) o
Article 979 V.A.P.C. reads 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 purpor t ing
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, OP would have
transferred or in any manner have affected any prop-=
erty whatever.”
Numerous authoritfes have well settled the proposition
that a person may be gu$lty of violating the above statute when
fraudulently signing his or her own name, with the purpose of
having it appear that the instrument so made is the act of another
having the same namee On thfs point we invite your attention to
the following: Edwards vs. State (Tex.Cr.App.1 108 S.W. 673’
Psrvin vs. State (~ex.C~.App.) 103 S.W.2d 773; U.Se vs Long iC.C.1
30 Fed, 678.
It is true that some decisions would appear to indicate
an opposing view, however, it is our opinion that the case of
Carnahan vs. State, 9 S,W.2d 1034, reference to which Is made in
your request, does not conflict with the weight of authority but
turns on the sufficfency of the indictment. (See Parvin Vs.
State, supra. 1
J’ -
Hon. Winston P. Brummett - page 3
Under the instant facts the accused, aware she had
no deposit with the bank, fraudulently made and uttered an in-
strument to obtain the money of another, The fact that the
accused in obtaining said money exercised no impersonation
as to the signature of the true depositor does not in our
opinion render the Forgery Statute, supra, inapplicable; ra-
ther the manner in which the entire transaction was accom-
plished manifests the accused’s intent to purport her acts
as being those of the true depositor; and this intent was most
cogently denoted by her statement as to the way she accumulated
such a large account.
Thus it is our opinion the elements of forgery are
present for which the accused is actionable.
In bringing an indictment, we suggest that allegations
be made charging both offenses through inclusion of distinct
counts. Thereby in the trial of the case evid.ence could first
be submitted to prove a violation of Article 5b7b3, V.A.P.C.,
and should the accused deny such a withdrawal without an exist-
ing deposit, she would appear to then render herself guilty of
fraudulently forging a withdrawal from the account of the true
depositor.
Of course the ultimate disposition of the case will
be determined by the facts adduced upon its trial. We realize
the difficulty confronting you in the state of facts you submit
and the above is written upon the assumpt~ion that the facts wili
develop upon trial as indicated.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By /s/ Benjamin Woodall
Benjamin Woodall, Assistant
By /s/ Bob D. Maddox
Bob D. Maddox
APPROVEDJUL 2 l-945
/s/ Grover Sellers
ATTORNEY GENERAL OF TEXAS
APPROVED:OPINIONCOMMI’ITEE
BY: BWB, CHAIRMAN
BDM:zd:wb