ENEEAI.

Grover Sellers

Hon. Winston P. Brummett Opinion No. O-6567 County Attorney Re: Dickens, Texas Under the facts set forth, which articles under our Penal Code have been violated; forgery; swindling or theft by Dear Sir: false pretext?

Your recent request for an opinion of this depart? mentreads, 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? 1M

FACTS :

“An individual with the samenameof another whohad 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 samein his presence and’did receive said money; upon being asked by said bank employee as to howshe managedto have so muchmoneyin the bank, she stated, ‘Myhusband and I madeit .* The accused did not misrepresent her nameto 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 evidence 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 sameout that sameyear and hadn’t had an account since. The 3 small checks above mentioned were all signed in accused ownhandwriting andwith her owntrue name.” After a careful consideration of the above facts, wehave concluded the accused maybe guilty of both the offense of forgery as defined by Article 979, V.A.P.C. and swindling by passing aworthless 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 mn Y.

_goods, services, labor, or other thing of valug iv givinp~ or aw dr ina Y check draft! or order uwn anv bank+ person, firFor corporation J uh beEson does not, fsc at the time said check, dra t h or order is so given : or drawn, &ve sufficient fun s ith such bank
, person, firm or corporation to pay%ch check, draft, or order?iand all other checks, drafts, or orders upon sai funds outstanding at the time such check, draft, or order was so given or drawn/ ***‘I sis added) (EmphaThe elements of the above defined offense would appear to be present under the instant facts, in that the accused presented 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. 

### 525)o (See Kuykendall v. State 160 S,W.2d

Article 979 V.A.P.C. reads as follows:

“He is guilty of forgery whowithout lawful authority, andwith intent to injure or defraud shall makea false instrument in writing purporting to be the act of another, in such manner that the false instrument so madewould (if the samewere true) have created, increased, diminished, discharged or defeated any pecuniary obligation, OPwould have transferred or in any mannerhave affected any prop-= erty whatever.” Numerousauthoritfes have well settled the proposition that a person maybe gu$lty of violating the above statute when fraudulently signing his or her ownname, with the purpose of having it appear that the instrument so madeis the act of another having the samename e Onthfs 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 somedecisions 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 madein your request, does not conflict with the weight of authority but turns on the sufficfency of the indictment. (See Parvin Vs. State, supra. 1J’ - Hon. Winston P. Brummett- page 3
Under the instant facts the accused, aware she had no deposit with the bank, fraudulently madeanduttered an instrument 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; rather the manner in which the entire transaction was accomplished 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.
present
be made counts. Thus it is our opinion the elements of forgery are

for which the accused is actionable. In bringing an indictment, we suggest that allegations charging both offenses through inclusion of distinct Thereby in the trial of the case evid.ence could first be submitted to prove aviolation of Article 5b7b3,V.A.P.C., and should the accused deny such awithdrawal without an existing deposit, shewould appear to then render herself guilty of fraudulently forging awithdrawal 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. Werealize the difficulty confronting you in the state of facts you submit and the above is written upon the assumpt~ionthat the facts wili develop upon trial as indicated. Yours very truly, ATTORNEY

GENERAL

OFTEXAS By/s/ Benjamin Woodall Ben jamin Woodall, Assistant By/s/ Bob D. Maddox BobD. Maddox APPROVED

JUL2 l-945 /s/ Grover Sellers ATTORNEY

GENERAL

OFTEXAS APPROVED:

OPINIONCOMMI’ITEE BY: BWB,CHAIRMAN BDM: zd:wb