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? 

ment reads, 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? 1 

M FACTS : 

“An individual with the same name of another 

who had 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 same in his presence and’did receive 

said money; upon being asked by said bank employee 

as to how she managed to have so much money in the 

bank, she stated, ‘My husband and I made it .* The 

accused did not misrepresent her name to 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 same out that 

same year and hadn’t had an account since. The 3 

small checks above mentioned were all signed in accused own handwriting and with her own true name.” 

After a careful consideration of the above facts, 

we have concluded the accused may be guilty of both the offense of forgery as defined by Article 979, V.A.P.C. and 

swindling by passing a worthless 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 ;41 be 

with intent to defraud. to obtain anv m n Y. _ goods, 

services, labor, or other thing of valug iv givinp~ 

or dr aw ina Y check draft! or order uw n anv bank+ 

person, firFor corporation J fsc u h beEson does not, 

at the time said check, dra h t or order is so given 

: or drawn, &ve sufficient fun s ith su ch bank , person, firm or corporation to pay %ch check, draft, 

or order 

?i 

and 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 who without lawful 

authority, and with intent to injure or defraud 

shall make a false instrument in writing purpor t ing 

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, OP would have 

transferred or in any manner have affected any prop-= 

erty whatever.” 

Numerous authoritfes have well settled the proposition 

that a person may be gu$lty of violating the above statute when 

fraudulently signing his or her own name, with the purpose of 

having it appear that the instrument so made is the act of another 

having the same name e On thfs 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 some decisions 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 made in 

your request, does not conflict with the weight of authority but 

turns on the sufficfency of the indictment. (See Parvin Vs. 

State, supra. 1 
J’ - 

Hon. Winston P. Brummett - page 3 

Under the instant facts the accused, aware she had 

no deposit with the bank, fraudulently made and uttered 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 a violation of Article 5b7b3, V.A.P.C., 

and should the accused deny such a withdrawal without an existing deposit, she would appear to then render herself guilty of 

fraudulently forging a withdrawal 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. We realize 

the difficulty confronting you in the state of facts you submit 

and the above is written upon the assumpt~ion that the facts wili 

develop upon trial as indicated. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By /s/ Benjamin Woodall 

Ben jamin Woodall, Assistant 

By /s/ Bob D. Maddox 

Bob D. Maddox 

APPROVED JUL 2 l-945 

/s/ Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMI’ITEE 

BY: BWB, CHAIRMAN 

BDM: zd:wb