78 S.W. 942
HUCKABY 
v. 
STATE.
Court of Criminal Appeals of Texas.
February 17, 1904.
Page 943
        Appeal from District Court, Freestone County; L. B. Cobb, Judge.
        Henry E. Huckaby was convicted of forgery, and appeals. Reversed.
        H. B. Daviss, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
        HENDERSON, J.
        Appellant was convicted of uttering or passing as true a forged instrument in writing, and his 
punishment assessed at two years' confinement in the penitentiary; hence this appeal.
        Appellant made a motion to quash the indictment on several grounds, which was overruled by the 
court. In order to present the matter, we will set out the charging part of the second count, under which 
appellant was convicted, to wit, that Henry Huckaby, on or about October 21, 1898, "did then and there, 
unlawfully and knowingly and fraudulently, have in his possession, with intent to use and pass the same 
as true, a false and forged instrument in writing, to the tenor following: `In the Name of God, Amen. I, 
Bry Huckaby, of Dew, Texas, Freestone county, do hereby make, publish and declare this my last will and 
testament, hereby revoking any and all wills heretofore made by me. First, I direct by executors 
hereinafter named, to pay my funeral expenses, and all my just debts and liabilities as soon as can be 
done after my decease. Second, I give and bequeath to my son, Bry, and daughter Mary's heirs, 
executors, administrators and assigns forever, two-thirds of my real-estate, except my grand-son Henry, 
who is exempted. (3) I give and bequeath to my wife Easter, the remaining one-third of my real-estate, 
the same to contain my dwelling house and the improvements around the same. (4) I further agree to 
give my wife Easter, all of my personal property after my debts and other liabilities are paid. (5) I hereby 
appoint my wife, Easter, executrix, and my son, Bry, executor, of this my last will and testament. In 
witness whereof I have hereunto subscribed my name and affix
                                     his
my seal, this 2nd of July, 1897. Bry X
                                    mark.
        Huckaby. [Seal.] Signed, sealed and published and declared by the said Bry Huckaby, as and for his 
last will and testament, of us, who at his request in the presence of him and of each other have hereunto 
subscribed our names as witnesses. Mary Wilson of Corsicana, Texas. H. E. Huckaby, Luna, Texas'—
against the peace and dignity of the state."
        Appellant insists that the indictment should have been quashed because it is not alleged in said 
count that it purported to be the act of Bry Huckaby; that is, the act of another person than appellant. As 
a matter of fact, there is no such allegation in the second count, and we are not authorized to bring this 
allegation forward from the first count. Anderson v. State, 20 Tex. App. 595, which was a case of forgery, 
the court appears to hold that this averment is necessary. However, in that case the allegation was 
contained in the indictment, and the question was not before the court. Rhudy's Case (Tex. Cr. App.) 58 
S. W. 1007, follows the above case, but holds that, while it is necessary to allege that the act purported to 
be that of another than defendant, it is not necessary to state the name of such other person alleged to be 
forged. Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356, the court went still further, and held in a forgery 
case that the indictment need not allege that it was the act of another where the instrument was set out 
in the indictment according to its tenor. This case cites Thurmond v. State, 25 Tex. Cr. App. 366, 8 S. W. 
473, which is authority for holding, in a charge for uttering a forged instrument, it is not necessary to 
allege that it purports to be the act of another, where the instrument alleged to be forged was set out 
according to its tenor. From this statement it seems that the authorities on this subject are in a state of 
some confusion. We believe, under our system of pleading, that the last two cases announce the correct 
doctrine. Of course, there might be a case where there was similarity of names between that of the 
alleged forger and the party whose name is charged to have been forged, and in such case it might be 
necessary to allege that the forged instrument purported to be the act of another than the party charged 
with forging the instrument. We accordingly hold that the indictment is good, as to this objection.
        Appellant also questions the indictment because it does not import an obligation on its face, and, if it 
was the subject of forgery, this should be shown by extrinsic and explanatory averments. It is the rule in 
this state, where the instrument does not show on its face that it imports an obligation in regard to money 
or property, but is the subject of forgery, and can be shown to be such by extrinsic averments, that these 
extrinsic or explanatory averments must be alleged. Cagle v. State, 39 Tex. Cr. R. 112, 44 S. W. 1097; 
Womble v. State, 39 Tex. Cr. R. 24, 44 S. W. 827; Crawford v. State, 40 Tex. Cr. R. 344, 50 S. W. 378; 
Colter v. State, 40 Tex. Cr. R. 165, 49 S. W. 379; Black v. State, 42 Tex. Cr. R. 585, 61 S. W. 478. The 
instrument here, which is charged to be the subject of forgery, is not one of the ordinary instruments used 
in commercial transactions, such as a note, draft, bond, contract, etc., but purports to be the will of Bry 
Huckaby. Before this paper could have the effect to create or discharge a pecuniary obligation, or transfer 
or in any manner affect any property, certain facts would have to be proven; that is, that the alleged 
testator was possessed of an estate subject to be devised by will. And we also believe, as will be shown 
hereafter, it would have to be proven that
Page 944
he was dead at the time of the alleged forgery. None of these matters are alleged in the indictment. We 
believe it was defective on this account. We understand it to be conceded in the statement of facts that 
the testator was alive at the time of the alleged forgery; nor is there anything in the agreement to show 
that he has since died. The agreement appears to indicate that he was still living at the time of the 
prosecution.
        Appellant insists that, under these circumstances, the alleged instrument purporting to be the last 
will of Bry Huckaby could not be the subject of forgery, and, per consequence, he could not be held for 
passing or uttering as a forged instrument. Johnson v. State, 9 Tex. App. 249, it is held that, although an 
instrument may not be the subject of forgery at the time it is made, yet if subsequently a law is passed 
which makes such an instrument forgery, and it is subsequently uttered, a prosecution for passing the 
same as true may be sustained. If it be conceded that this decision announces a sound doctrine, and is 
applicable to a case of this character, then it would follow, if the will could not be forged during the 
lifetime of Bry Huckaby, but it might become the subject of prosecution for knowingly having same in 
possession, with intent to pass it as true, after his death, in such case the death of said Huckaby must be 
alleged and proven, in order to sustain a conviction. The death of said Huckaby is not shown in the 
agreement, and consequently there can be no illegal uttering of the will—much less, having same in 
possession, with intent to utter—as we believe no one will contend that the will had any legal efficacy to 
affect property during the lifetime of the alleged testator, and could only affect property under certain 
formalities after his death. Rev. St. 1895, arts. 1842, 1884, 1904-1907, 5333-5335. The above-cited 
articles show statutory formalities which must be observed in order to give a will any legal efficacy or 
standing for the purpose of transferring or affecting property.
        However, the most important question raised by appellant is that, under our statute, a will is not the 
subject of forgery during the life of the declarant. In England, as we understand the authorities, it is 
distinctly held that forgery can be committed by falsely making the will of a living person. See Russell on 
Crimes, vol. 2, p. 748. We are cited to a number of cases in the text-writers which support this view, but 
the cases cited are mostly, if not all, English cases. These cases would only be persuasive if under a 
definition of forgery similar to our own statutory definitions of that offense. But as we understand the 
English or common-law definition of "forgery," the instrument must be such that, if genuine, it would be 
apparently of some legal efficacy. Bishop, Cr. Law, vol. 2, § 523. And it is not necessary, as under our 
statute, that the instrument must be such that, if the same were true, it would have created, diminished, 
discharged, or defeated any pecuniary obligation, or would have transferred or in any manner have 
affected any property whatever. The injury intended must be such as to affect one pecuniarily, or in 
relation to his property. See articles 536, 537, Pen. Code 1895. It will be noted that all the provisions of 
our statute are used in the past, and not the present, tense—that is, the language is, "would have 
created, would have transferred" —and do not depend on some future contingency in order to give them 
legal efficacy. Now, can it be held that the will, if genuine, during the lifetime of the testator would have 
the effect, in præsenti, to create or discharge any pecuniary obligation, or to transfer or affect any 
property whatever? It is essentially ambulatory during the lifetime of the declarant, subject to his 
revocation at any time, and cannot possibly take effect until his death. Being such an instrument, we hold 
that it is not the subject of forgery, where the making of the instrument occurs during the life of the 
testator. It is hardly necessary to observe that all our offenses are purely statutory, and the statute must 
clearly define and cover the offense before a prosecution can be maintained. We cannot have recourse to 
the common law to make out an offense. Rogers v. State, 8 Tex. App. 401. As, in our forgery law, defects 
in the past have been discovered and amended by the Legislature, so as to embrace matters not 
theretofore criminal, we here call the attention of the Legislature to this matter, in order that the statute 
with reference to forgery may be amended so as to embrace wills, if deemed necessary.
        For the errors discussed, the judgment is reversed, and the prosecution ordered dismissed.
        BROOKS, J. (dissenting).
        I do not agree with the opinion of the majority, reversing and dismissing the case, and will state my 
views:
        Appellant insists that the indictment is defective, because the will was written during the lifetime of 
the testator, Bry Huckaby, and could have no legal effect until probated after his death; hence it was of 
itself void and of no legal effect, and would not, if true, have created, increased, diminished, discharged, 
or defeated any pecuniary obligation, nor would it have transferred or in any manner have affected any 
property whatever, and was therefore not the subject of forgery, as required by law. And because the said 
will alleged to have been forged plainly shows upon its face that it is not a proper instrument to be 
admitted to probate, in this: that the two subscribing witnesses thereto each have an inheritance under 
and by virtue of said pretended will, and said will could not be admitted to probate, and otherwise be 
made to have any legal effect whatever, until one
Page 945
or both of said witnesses should renounce and relinquish his said interests thereunder, and hence said will 
is void. I will discuss these propositions in their converse order:
        Article 5348, Rev. St., provides: "Should any person be subscribing witness to a will, and be also a 
legatee or devisee therein, if the will can not be otherwise established, such bequest shall be void, and 
such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such 
bequest had been made. But if in such case the witness would have been entitled to a share of the estate 
of the testator had there been no will, he shall be entitled to so much of such share as shall not exceed 
the value of the bequest to him in the will." Article 5349 provides: "In the case provided for in the 
preceding article, such will may be proved by the evidence of the subscribing witnesses corroborated by 
the testimony of one or more other disinterested and credible persons, to the effect that the testimony of 
such subscribing witnesses necessary to sustain the will is substantially true, in which event the bequest 
to such subscribing witness shall not be void." These two articles dispose of appellant's contention that the 
will is void because the legatees in the will are subscribing witnesses, since said articles show that the will 
is not void by reason of said fact.
        As to the other proposition: The agreed statement of facts shows that appellant was guilty of having 
in possession the forged instrument alleged, if the will is the subject of forgery during the lifetime of the 
testator.
        Article 530, Pen. Code 1895, provides: "He is guilty of forgery who, without lawful authority, and 
with intent to injure or defraud, shall make a false instrument in writing purporting 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, or would have transferred, or in 
any manner have affected any property whatever." Article 537: "By an instrument which would `have 
transferred or in any manner have affected' property, is meant every species of conveyance, or 
undertaking in writing, which supposes a right in the person purporting to execute it, to dispose of or 
change the character of property of every kind, and which can have such effect when genuine." In order 
to ascertain the meaning of the above articles, it becomes necessary to review the common law on this 
question, and to ascertain therefrom, by judicial construction, which the statutes expressly authorize, the 
legislative intent in enacting these articles, and as to whether these articles cover the forgery of a will, 
testator being living. Bishop, Crim. Law, § 603, subd. 2, vol. 2, says: "It does not impair the criminality of 
forging a will that the supposed testator is living." Russell on Crimes, vol. 2, pp. 749-751, states: "The 
doctrine is established by several cases, that forgery may be committed by the false making of an 
instrument purporting to be the will of a person who is still living; notwithstanding the objection that 
during the life of a party his will is ambulatory; and can have no validity as a will until his death. Thus, a 
prisoner was convicted of forging a seaman's will, who, it appeared, was still alive, and had returned to 
England two years after the prize money had been received by the prisoner under a forged will. [Citing 
Murphy's Case, 10 St. Tri. 183 (Hagr. Ed.); 2 East, P. C. c. 19, § 43, p. 949.] In a subsequent case, where 
the prisoner was indicted for forging the last will and testament of a woman who was still living, and was a 
witness on the trial, and convicted, the judgment was respited upon a doubt whether, as the supposed 
testatrix was living, the prisoner was legally convicted of having forged her last will and testament; there 
being no such instrument as a last will and testament, in contemplation of law, until after the death of the 
person making it. But the judges are said to have been unanimously of opinion that an instrument may be 
the subject of forgery, although in fact it should appear impossible for such an instrument as the 
instrument forged to exist, provided the instrument purports on the face of it to be good and valid as to 
the purposes for which it was intended to be made. The point was again referred to the consideration of 
the judges in a case where the prisoner was indicted and convicted for knowingly uttering and publishing 
as true a certain false and forged will and testament of one J. G., late a seaman belonging to a merchant 
vessel, etc., and it appeared that the said J. G. was living. All the judges held that the conviction was 
right. It was observed by the learned judges who delivered their opinion that every will must be made in 
the lifetime of the party whose will it was; that it existed as a will in his lifetime, though it did not take 
effect till his death, and that the making of a false instrument, importing on the face of it to be a will, was 
equally forgery, whether the person whose will it purported to be were dead or alive at the time of making 
it; that a contrary doctrine would operate as a repeal of the law, for, if the act of making the will were not 
forgery at the time, a publication afterwards would not make it so. Buller, J., thought the very definition of 
`forgery' decided the doubt, for it was the making a false instrument with intent to deceive, and that here 
the intention to deceive had been established by the jury, and the instrument purporting to be a will was 
clearly false. On an indictment for forging a will, the probate of that will, unrevoked, is not conclusive 
evidence of its validity, so as to be a bar to the prosecution." The same author says that it was an offense 
to probate the will of a nonexistent person. Patteson, J., in passing on the question, said: "There is 
nothing to limit the offense to the

Page 946
forgery only of the wills of persons that have existed, and it has been expressly held that forgery may be 
committed by the false making of the will of a living person." In Archbold, Crim. Prac. & Plead. vol. 2, p. 
1639, we find this language: "Will, testament, codicil, or testamentary writing may be described in the 
indictment as a certain will, or a certain will and testament, or a certain codicil to a will, without saying of 
whom, or the date or other particulars. Forgery may be committed of the will of a person who is alive, or 
the will of a person who never existed. Where, upon indictment for forging a will, the prosecutor, in the 
course of his evidence, put in and proved the probate, it was thereupon objected, for the prisoners, that 
this, whilst unrevoked, was conclusive evidence that the will was genuine and valid, Garrow, B., overruled 
the objection, and, the prisoner being convicted, the judge held the conviction to be right." Mr. Wharton, 
in his excellent work on Criminal Law, § 682, says: "It need scarcely be said that whatever falls under the 
heads of bonds, deeds, commercial paper, or receipts and kindred writings, may be the object of forgery 
at common law. For the purpose of detail enumeration, however, it may be mentioned that the principle 
has been specifically applied to bonds, deeds, to commercial paper of all kinds, to wills, etc., and, in fine, 
to all written or other instruments which may be the foundation of a suit against another." Section 695 of 
the same work states: "A man may be convicted of forging the will of another who is still alive, as upon 
the latter's death the will, being genuine, would be the basis of legal procedure." Section 714 says: "The 
fact that no person is at the time legally in a situation to be defrauded by the act is no defense, if there is 
a possibility of such fraud." Again, in section 739: "It is not necessary, therefore, to the validity of the 
indictment, that the forged instrument should appear to be one which could be used immediately as legal 
proof. It is enough if it can be so used at some future period. Thus an indictment is good which charges 
the forgery of a will of a living person, although such will could not be the foundation of legal process until 
after the death of the person whose name is forged." In McClain's work on Criminal Law, vol. 2, § 744, the 
common-law definitions of forgery, as laid down by Blackstone, are given, as follows: "The fraudulent 
making or altering of a writing to the prejudice of another man's right. Furthermore, some English judges 
have spoken of it as `the making of a false instrument with intent to deceive, but the deceit must involve 
danger of pecuniary loss'; and it is suggested that the expression `with intent to deceive in such manner 
as to expose any person to loss or the risk of loss,' would accurately express the idea. Forgery of wills was 
early recognized as a crime; and it was held to be immaterial that the supposed testator was living, or 
that there was no such person as the one the instrument purported to name." Section 768 lays it down 
"that it is not necessary that the injury be pecuniary. It is sufficient that the intention be to deprive the 
other of a legal right." In Scott v. State (Tex. Cr. App.) 48 S. W. 524, it was held that the intent to injure 
or defraud is only necessary; that the act need not injure. See, also, Howell v. State, 37 Tex. 591. And 
again. Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751, it was said that the deed, although not 
acknowledged, is the subject of forgery, though it may be necessary subsequently to take steps to make it 
valid.
        In view of the above excerpts from the common law and authorities of this court, I will proceed to 
discuss the statutes of forgery as contained in our Penal Code. Would the forged will of a person still living 
come within the provisions of these articles? It will be noted from the above excerpts that it was so at 
common law. It will be noted that the intent to injure is the gravamen of the offense, even under our own 
authorities, as well as the common law. It will be noted from one of the above excerpts from the common 
law that the courts have held that wills are the subject of forgery under ordinary statutes similar to our 
own. If this forged will were a valid instrument, it would have transferred or in a manner have affected the 
property of the testator. Therefore I believe that it was the subject of forgery, regardless of the testator 
being dead or alive, and therefore the appellant's contentions are not correct. Certainly, if this instrument 
had been true, and had not been revoked by the testator, or supposed testator, at his death, the same 
would have transferred, and to a large extent would have affected, the property he might have left, and 
would have been a legal method to dispose of and change the title of property of all kinds belonging to the 
testator. To hold this instrument invalid would be to say there is no law in Texas, as held by the majority, 
for punishing a person for the forging of a will; and such a construction would lead me to the converse 
conclusion. Clearly, when the Legislature enacted these statutes, they had in contemplation the forgery of 
wills, as well as any other instrument that would change or affect property. This was the common law, and 
in the light of such construction said statutes were evidently adopted. In view of this fact, I think the clear 
legislative intent, as well as the words of these articles under consideration, makes it imperative on this 
court to hold that the forgery of a will of a person living is forgery, within the contemplation of our law.
        In my opinion, the indictment is properly drawn, and charges an offense against the laws of this 
state; and, no error being manifested in the record, I believe the judgment should be affirmed.