“Every constituent element of the offense as testified to by the accomplice need not be corroborated.”
How later courts described this case
- “Every constituent element of the offense as testified to by the accomplice need not be corroborated.”
- Opinion on Rehearing, at 55
Written by the judges who cited it.
The opinion
ON APPELLANT’S MOTION FOR REHEARING
BELCHER, Commissioner.
Appellant contends that the contract of sale and the assignment which is-set out and referred to in the indictment as “a certain instrument in writing” relate-to the sale of real estate, and are in violation of the provisions of Art. 1137⅛. V.A.P.C. This statute prohibits any person subdividing real estate from using the subdivision’s description in any deed of conveyance or contract of sale delivered to a purchaser unless and until a map or plat has been duly authorized and filed for record with the clerk of the County Court of the county where the real estate is situated-He further contends that the statutory prohibition with a penalty imposed renders the contract of sale and the assignment void. Therefore, the assignment on which this-prosecution rests could not be made the basis of forgery and the appellant could not be guilty as charged.
At first attention is directed to the provisions of .Art. 1010, V.A.P.C., to the effect that upon,.indictment under Chapter 2 o£ *55 Title 14, it shall be no defense that Ae instrument was in law, either as to substance -or form, void.
The first paragraph in the contract of sale consists of an application to purchase real estate from the Veterans Land Board -of Texas. The contract is subject, among other conditions, to the commitment of the Board not being below the contract price. Next, the contract is subject to the defects, if any, in the title. The assignment depends on certain terms and conditions, and is also subject to acceptance by the Board.
It is apparent from the contract that it is an executory contract to convey and not such a contract of sale per se as passes either legal or equitable title. The assignment is in the same condition. Currie v. Burgess, 132 Tex. 104 , 120 S.W.2d 788 ; Tashnek v. Hefner, Tex.Civ.App., 282 S.W.2d 298 . Art. 1137h, supra, relates only to deeds and contracts of sale delivered to a purchaser. Therefore, the assignment set out and designated in 'the indictment as “a certain instrument in writing” is not void because it does not come within the terms of the aforesaid article.
It is insisted that there is a fatal variance between the allegations of the indictment and the proof because the description of the real estate is violative of Art. 1137h, supra, which renders the contract of sale and its assignment void. This contention is controlled by the holding herein that said article is not applicable to the instruments here in question.
It is strenuously re-urged that the evidence is insufficient to support the conviction on the ground that there is no showing that Doris Sayles, the notary, had any fraudulent intent when she certified that Mireles had appeared before her in the making of the acknowledgment.
In addition to the disposition made of this contention in the original opinion, it is further concluded that without regard to wheAer Doris Sayles innocently, or while acting as a principal, certified that Mireles appeared before her as a notary, the evidence is sufficient to warrant the finding that the appellant had the intent to defraud and was a principal in Ae commission of the offense charged.
The motion for rehearing is overruled.
Opinion approved by the Court.