“‘[P]ass’ in the forgery statute means to offer the forged instrument, and it does not require a showing that the defendant actually received consideration in exchange for the check.”
How later courts described this case
- “‘[P]ass’ in the forgery statute means to offer the forged instrument, and it does not require a showing that the defendant actually received consideration in exchange for the check.”
- equating terms “pass” and “utter” with acts of delivering and circulating
- opinion on original submission
- on motion for rehearing
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
Just as I recanted in my dissenting opinion on appellant’s motion for rehearing in Minix, so here, as the author of the original panel opinion, I do likewise and respectfully dissent.
With deference, may I point out, without reiterating the content of my dissenting opinion in Minix, that what is truly the essential element of the offense is “intent to defraud or harm another.” That culpable mental state is the sine qua non of forgery — whether making, presenting or possessing the false writing. Indeed, the author of the opinion for the Court, writing as a commissioner in Stuebgen v. State, 547 S.W.2d 29, 32 (Tex.Cr.App.1977), succinctly stated the proposition that “the intent to defraud is the gist of the offense” of forgery. 1 If we would but recognize that “intent to defraud” is the essence of every forgery offense and then interpret and construe the phrase according to its obvious intendment, the judgment of conviction in this, as well as what must be scores of other similar cases, would be quite legitimately upheld. See, again, my dissenting opinion in Minix. Simply stated, one who holds the intent to defraud or harm another necessarily knows or has reason to believe that the writing he makes, presents or possesses with that intent purports to be the act of another who did not authorize that act.
Today’s opinion marks a return to old code fact pleading that the new penal code does not sanction. Neither can I. Accordingly, I would overrule the motion for rehearing and affirm the judgment of conviction.
Onion, P. J., dissents without written opinion.
DOUGLAS and W. C. DAVIS, JJ., join.
. Presiding Judge Onion, writing for a unanimous court in Baker v. State, 552 S.W.2d 818 (Tex.Cr.App.1977) quoted the statement approvingly.