                                                 ENEEAI.


Grover Sellers




     Hon. Winston P. Brummett       Opinion No. O-6567
     County Attorney                Re: Under the facts set forth,
     Dickens, Texas                 which articles under our Penal
                                    Code have been violated; forg-
                                    ery; 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
                   MFACTS:
                 “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 evi-
           dence 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 ac-
           cused 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 of-
     fense 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  ;4       1 be
      with intent to defraud. to obtain anv m n Y._ goods,
      services,   labor, or other thing of valug iv givinp~
      or dr awina     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 ht or order is so given
  :   or drawn, &ve sufficient        fun s ith su ch bank , per-
      son, firm or corporation       to pay %ch check, draft,
      or order    and all other checks, drafts,       or orders
      upon sai ?i funds outstanding at the time such check,
      draft, or order was so given or drawn/ ***‘I          (Empha-
      sis added)
           The elements of the above defined offense would appear
to be present under the instant facts,   in that the accused pre-
sented 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.    (See Kuykendall v. State 160 S,W.2d
525) o
           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 namee 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 in-
         strument 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;   ra-
         ther the manner in which the entire transaction     was accom-
         plished 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.
                      Thus it is our opinion the elements   of forgery   are
         present   for which the accused is actionable.

                      In bringing an indictment,   we suggest that allegations
         be made charging both offenses     through inclusion   of distinct
         counts.    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 exist-
         ing 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
                                            Benjamin Woodall, Assistant
                                            By /s/ Bob D. Maddox
                                            Bob D. Maddox
         APPROVEDJUL 2     l-945
         /s/ Grover Sellers
         ATTORNEY GENERAL   OF TEXAS
         APPROVED:OPINIONCOMMI’ITEE
         BY:     BWB, CHAIRMAN
         BDM:zd:wb
