The opinion
ON MOTION FOR REHEARING.
Graves, Judge.
Appellant has filed an exhaustive motion for a rehearing herein, alleging as his first ground for the granting of such motion the following: “(1) That the fourth count in the indictment is fatally defective because it fails to allege that the Railroad Commission had, prior to the time of the alleged offense, duly made and promulgated an order or regulation requiring the use of tenders in the transportation of oil and prescribing the form or forms of such tenders.”
It will be seen from a perusal of the indictment, as set forth in the original opinion, that the offense charged is not the
making
of a false instrument, but is a conspiracy to use a tender of the Railroad Commission to which had been forged the name of E. L. Green, Jr., for the purpose of inducing the parties named in the indictment to receive and transport certain crude petroleum. It will be noticed that the indictment herein charges that the instrument itself was already in existence, and the intent to defraud was in conspiring to knowingly use this instrument after the name of E. L. Green, Jr., had been forged thereto. We can see no reason why there should be an allegation in this indictment that the Railroad Commission had duly made and promulgated an order or regulation to require the use of tenders in the transportation of oil, and prescribing the form therefor, in view of the direct averment that the instrument upon which the indictment was predicated was a ten
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der of the Railroad Commission. Stated in another way, the indictment embraces sufficient allegations to show that the instrument to which the name of E. L. Green, Jr., was forged was a tender of the Railroad Commission.
The second complaint set forth in said motion is: “(2) That the fourth count in the indictment is fatally defective because it does not set out
in hsec verba,
the tender which it charges the appellant and his alleged confederates conspired to use.”
It is not necessary in charging a conspiracy to commit an offense to allege the offense intended with the fullness or particularity necessary in an indictment charging only the commission of the intended offense. We quote from Buckhannan v. State, 252 S. W. 500 , as follows: “All of the authorities in this State seem to hold that it is not necessary, in alleging a conspiracy to commit an offense, to allege the offense intended with even the fullness or particularity necessary in an indictment charging only the commission of the offense thus said to be in contemplation. This rule will be found announced in the early case of Brown v. State, 2 Texas App. 115, and seems to have been followed in the few cases charging this offense.” Also see 9 Tex. Jur. 389. It will be observed that the tender was substantially described in the indictment with sufficient accuracy to apprise the appellant of the criminal act he is charged with entering into a conspiracy to commit.
In paragraph three of such motion the complaint is made that the conspiracy charged was to knowingly use a simulated tender, whereas the statute prohibits the use of a tender validly issued to which an agent’s name has been forged. As already stated, we think the indictment clearly avers the existence of a tender of the Railroad Commission, and shows that the name of E. L. Green, Jr., an agent of the commission, had been forged thereto. We find nothing in the indictment indicating that the pleader was charging a conspiracy to use a simulated tender; but instead that he intended to use a tender such as the Railroad Commission had authorized to which the signature of their agent had been forged, and that if the signature thereto had been genuine, same would have lawfully authorized the transportation of the oil in question.
The fourth complaint set forth is: “(4) That the fourth count in the indictment is fatally defective because it is not charged that the alleged conspirators confederated to use
as true
a false tender.”
The count in the indictment itself must be taken as a whole, and the allegations therein contained, in our judgment, are not
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susceptible to the criticism leveled at it in paragraph 4. We note that the indictment contains, among other averments, the following: “Which tender, if genuine, would be a written permit for the transportation of such oil, approved and issued under the authority of said Railroad Commission.”
We confess that this matter has given us some concern in view of the fact that it is new legislation which has not heretofore been construed by this Court. The original opinion itself of necessity was lengthy because of the large record and the many bills of exceptions reserved and questions raised. We therefore pretermit a lengthy discussion of the above matters because of the fact that same have been written upon and thoroughly considered on the original submission. We adhere to the conclusions expressed in the original opinion, and this motion will therefore be overruled.
NOTE — The above case was not reported in Volume 134 of the Texas Criminal Reports because at time said volume was published an appeal had been taken to Supreme Court of the United States, which appeal had not been acted on, and mandate of said Supreme Court, dismissing said appeal, was not received until November 14, 1938.