Correspondence the penal laws of the State of Texas, upon their oaths present and charge that, etc." The Court says: "It is to be noted the grand jury was a grand jury for Freestone County, sworn and charged in the District Court of Freestone County to inquire into offenses committed in Freestone County, but it does not affirmatively allege that the indict ment was presented in the District Court of Freestone County." And for this defect the indictment was held bad. The indictment in this case was doubtless filed by the district clerk of Freestone County, and the record shows that the case was called and tried in the District Court of Freestone County, but the Court, appealing to their technical instead of their common sense, could not determine where or in what court this indictment was presented. The indictment in this case was for forgery, and the Court says that another objection to the indictment is that that it only sets out the alleged forged instrument in substance and not according to its tenor, and the learned Judge rendering the opinion says: "The object of which reqirement (that the instrument be set out by its tenor) is . . . to enable the Court to judge whether or not it is an instrument whereof forgery may be committed." Now if that be the object of the rule, it is hard for the layman, or ordinary lawyer, to understand why pleading the instrument in substance, when the substance of the instru ment shows it to be a subject of forgery (which it must necessarily do) is not suffi cient. In the same opinion the Court says: "In some cases it is permissible, as for instance in perjury or swindling, to set forth the instrument by its substance and effect, but we are aware of no case holding such pleading sufficient in forgery." It occurs to the ordi nary mind that if the Court had been willing to make a common sense stride along the line of progress for the protection of civilized society and its ordinary business it would not have lost the opportunity to modify the rule and conform it to the rule theretofore laid down in cases of perjury and swindling. In the case of Ex parte Rogers, 10 Tex. App. 661, in the lower left hand corner of the alleged forged instrument as set out in the indictment, appeared the following words: "In presence of John Gardner, Henry Miller." The instrument introduced in evidence in the
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lower left hand corner had the words: "Sealed and delivered in presence of John Gardner, Henry Miller." The Court held the indict ment did not sufficiently set out the written instrument. Bearing in mind the reason for pleading the instrument according to its tenor laid down by the Court in the case cited above, it is hard to understand why the indictment was insufficient in this case. How would the words "sealed and delivered" assist the Court in construing the body of the instru ment, and in determining whether or not it created, increased, diminished, or discharged a pecuniary obligation? In 1887 the Court showed some sign of reform. It held in the case of Hennessy v. State, 23 Tex. App. 352, that misplacing the dot over the letter "i" did not vitiate the indictment nor make the varience fatal between the indictment and the instrument introduced in evidence, but in the case of Edgerton v. State, 70 S. W. Rep. 90, decided in 1902, the Court seems to have returned to the old "landmarks." It holds that the words "for labor" in the tenor clause in the indictment and "for labobar" in the instrument itself, are not the same, that the variance is fatal, thus apparently discriminat ing in favor of the forger who is deficient in orthography. The Judges of the courts of criminal appeal in this or any of the other states are not altogether to blame for adhering to prece dents that have survived the reasons upon which they were based, if they were ever based on reason. Mr. Lehmann in his article above referred to says: "How many members of the profession are there who would not be quick to disclaim that they are criminal lawyers, and are there not some even to resent the designation as a term of reproach?" This is true, and still when we are represent ing persons charged with crime we uniformly go before our courts of appeal and insist on their rigidly and strictly following these timeworn precedents and technicalities, at least such of them as apply to the case in hand. And as we see lawyers, usually able lawyers, coming from different parts of the state, appearing each week before the Court of Ap peals, each insisting on the Court following the technical precedents laid down in his case, and we realize that the Judges, though learned, and usually broad-minded, highminded men, are human and subject to human influences, can we wonder at the "Conserva tism in Legal Procedure?" How can a reform
