*1 1, 2, Titlе C. P. is entitled C. grand jury. Chap. “Organization to be sets in detail the various out steps grand jury,” taken, insists should be those which including things indictment, set in as the impanel- out detail this such separately etc., The article of said first jurors. ing, swearing, charging, grand 2 of “After the said title as follows: Chap. begins grand jury authorities, etc. cites number of organized,” Appellant from them correctness his conclusions diction de- argues and exhibits a research are lightful peruse, which knowledge commendable, we but are convinced the soundness cites Crim. conclusion. He Carrillo v. 81 Texas Rep.
in which case the lamented Davidson held that an indictment Judge as began follows: “The of Cameron jury County, grand Texas, oaths, thereof, District upon their Court at present Term, 1917,” the March A. D. sufficient with the compliance second and third statute requisites prescribing necessary of an indictment. The formal ingredients of said part indictment is not so nеarly in with the statute the one compliance before us. made, unable with the
Being agree contentions fur- being ther of the that the indictment is sufficient the matters of, complained leave for appellant’s file second request motion for is denied. rehearing
Denied. W. Cochran State. May No. 11602. Delivered 1928.
Rehearing granted January State 1930. Rehearing granted appellant 1930. June Reported in 30 S. W. (2d) *2 states the case. The Morrow, Han- Childress, Weeks, & Francis
E. Diggs, E. Falls, kerson, for appellant. Wichita Austin, Dawson, for the State. Attorney, A. State’s A. the justify the evidence sufficiency On the as to proposition State, count, the cited Cofer v. on first appellant the conviction State, 315; Pierce v. 189; 232 W. Mettall v. S. S. W. 526; 292; State, 43 Gumpert Robinson S. W. S. W. 228 S. 237.W. CHRISTIAN, the Judge. punishment offense forgery; The for three years. penitentiary
confinement was convicted under which appellant The count of indictment then there and with- unlawfully that charges appellant —“did defraud, makе injure with intent to authority, and out lawful false instrument writ- writing, a false instrument then there of the tenor following: so was made ing M. C. Boyd Treasurer County ' 6-18, Childress, Texas, 1924. .. n ' , . to H. or order. . 44.00 Billiard
,Pay .$ J. four & Forty no/100........Dollars. Mechanics Bank M.
Farmers & State Per C. Boyd Childress, Texas County 88-254—11 Treasurer Frank Freeman.
By W. And endorsed the back Dillard.” thereof:......J. that the check testimony state’s discloses was written and Freeman, Treasurer, Frank after Deputy County W. signed by Clerk had him County presented warrant drawn been The state’s further shows that testimony en- appellant. name on the check without dorsed H. Dilliard’s authority. there is a contends that variance between the Appellant proof His contention must indictment. be sustained. allegations false charged Appellant making described as set forth. instrument was hereinbefore and such It check, the state’s that not make the did undisputed treasurer made it. The that the county evidence showing deputy name on the endorsement of payee’s consisted in the check the If proof check authority. appellant forged without that of the act to be deputy shown purported should have State, 3 S. W. Article 979 P. C. Howes v. (2d) treasurer.
In the indictment the case of Pierce v. 44 S. W. whereas, order, of a money proof forging postal name to such disclosed that the accused forged payee order. Henderson said: reversing Judge order, then as “If indeed contended forged money appellant, should have shown he by appellant, proof personated In this it shows no such On the contrary, case postmaster. thing. order; such shows that he the name of the payee *3 same, he name on the and obtained the money receipt * * * is a due on it. In our there variance complete opinion and the between (indictment) proof.” lan- McBride v. 246 S. Morrow used W. Judge as follows:
guage endorser, “If it is for the name of the desired prosecute forging be so as to coincide with the the indictment should framed evidence to that effect.”
In the instant the count of the indictment under which appel was not so framed as to coincide with the lant convicted was evi effect that the name of the of the payee dence to the check was endorsement, indictment, set out in the was The although forged. Cofer v. 295 S. W. and authorities no check. part cited. and the cause remanded. reversed judgment
Reversed and remanded. Commission of has been opinion Appeals
The foregoing of the Court of Criminal Appeals ap- by Judges examined Court. proved FOR REHEARING. MOTION
ON motions LATTIMORE, file for parties rehearing Judge. Both State should be granted, of opinion Being herein. filed the application appellant. to consider need no there is in our opinion original supposed reversed casе was This indictment, the first count in allegations between variance and the but testimony, mature consideration we are of upon opinion that our action so have erroneous. There seems to doing been no trial raised court of the sufficiency first count the indictment to of the endorsement charge forgery out,- the check set upon therein motion to quash, objection —either to the introduction of to the testimony, exception court to the count based submitting jury appellant’s under said guilt their belief that he made such upon falsely endorsement. It is evident from the record that the contention this State’s upon trial was that wrote set out in first the check said upon count, without lawful with intent to and de- authority injure fraud, the name of H. Dillard as endorsement on said check. trial, The whole contention of as evidenced appellant upon for the defense and thе testimony special requested, charges that he was authorized or believed himself authorized sufficiently Dillard’s name on said check as such write endorsement. Upon this issue the battle was court, out in lower the case fought tried, verdict rendered finding appellant guilty the first count of the indictment. are of count one charges appellant
We endorsement, of said and that said count was not defective in substance. to the substance of an Exception indictment must one or more of the four have been for reasons which are set out in P., which was Art. C. C. none of advanced the indict- against thereof in this case. ment or part Rangel Texas Crim. the mere form an App. Complaint indictment can *4 not be for the first time made in a motion in arrest of judgment. 124; Leon v. 95 Texas Crim. Rep. 93 Texas Melley Crim. Rep.
Much of the able and in ingenious the brief of argument appel- lant’s counsel is tо addressed sufficiency indictment and variance.
We further are that the which testimony showed that appellant received from county treasurer check to payable Dillard, and thereafter himself wrote the name Dil- PI. J. lard” “J. check,- as an endorsement on said responsive to and —was met in fully allegations the first appearing count of as a said indictment. witness Appellant admitted the receipt treasurer, from but said check said claimed that H. Dillard owed him that he believed he had the and to write authority Dillard’s name cashed, on said check. When said check bore the endorsement of Dillard which was shown to be in handwriting. Appel- appellant’s commissioner, lant stand admitted was and on the witness county Dillard that he commissioners court a claim for to into the pay put allowed, court and work, for the commissioners’ road and to warrant for amount was made out delivered appellant, the warrant for who took it to the treasurer and county exchanged mentioned, which check was to Dillard and the check payable name thereafter cashed it at the time the by appellant, upon having in of Dillard endorsed Dillard swore appellant’s handwriting. work, owed him for road that he in no claim county nothing put therefor, name said and did authorize to write his on appellant evidence, as in our check. The above stated opinion, responsive to and meets the and is sufficient. allegation a number of witnesses to offered
Appellant prove good reputa- tion as a citizen. The State ad- thereupon peaceable, law-abiding court that re- mitted appellant’s general reputation open mentioned, was until the of the events here spects good happening the court deсlined to said witnesses involved. Thereupon permit There was no error in the court’s testify, appellant excepted. action in permit reference witnesses to refusing testify, Becker view of said admission. 190 S. W. Rep. cases have since been
authorities cited. Other rendered affirming case. Becker holding have examined the contentions set bills of up We exception A and think none of them show error. habit of for men in his his wife’s .to cash checks occasional employ; pay- checks of men who worked on the road ment by giving account; his with other men to on bank arrangement pay appellant’s commissioner, him who worked for thereafter parties whom such warrants and checks and paid parties he got made, of them on had been none shed- light arrangements —would shown by of the accused this case being innocence guilt a man in a claim for who swore that appellant put the testimony claim, and no to such no such work had right that he had done thereafter endorsed check upon representing that if appellant man, of such such testimony, such claim name final settlement claim that had the he true, not shed light appellant’s if could *5 The make such endorsement. such man to from and authority right in bill of ex- the court complained to the charge exceptions of no merit. deemed No. 5 are ception
206 tried, first count the and that the case was fairly
Believing the the offense of in the indictment sufficiently charged made, check, met and that it was the proof endorsement on rehearing further that the State’s motion for we are of the opinion of reversal heretofore rendered set the judgment should granted, affirmed, all aside, of the trial court of which judgment ordered. accordingly now
Granted. appellant’s rehearing. on motion for HAWKINS, account of an unusual combination of Judge. On circumstances a rather situation has arisen in this case. peculiar original opinion reversing judgment remanding case 30, 1928; 9th, for new trial was delivered on on' May June 1928, well within the fifteen motions for days filing rehearing, filed a motion this court to amend its asking judgment and instead of the case remanded that it be ordered dis- ordering This 13th; missed. motion was submitted on court adjourned June on 30th on which the state day filed motion for rehearing. June Not able to being dispose matter before adjournment motions were carried to a over term of succeeding court. On 15, 1930, the state’s motion was January now granted. Appellant of the court to consider challenges right the state’s motion on that not been acted on ground term having in which during rendered, original opinion been filed after the having of more than fifteen from lapse rendition of days opinion motion for the state should not have been considered at all. If himself had not on 9th filed the motion heretofore June to the referred soundness of his position reference to mat- ter would not State, be debatable. Carusales v. 47 Tex. Cr. R. 1038; State, 82 S. W. 11 Bailey 140; Tex. Cr. R. Craddock v. 641; R. Tex. Cr. Kraft v. Tex. Cr. R. 1038; Romatka, S. McGhee v. W. 241; 92 Texas Rep. Fitts v. R. 98 Tex. Cr. However, S. W. 1006. when appel- lant his motion it filed suspended judgment, and the motion not been acted the term the having during matter was carried over Romatka, under our practice. (McGhee It supra.) seems un- determine specifically necessary what—under the circumstances the status of the state’s stated —was delayed motion for rehearing, writer, in the. disposition of the case turns point. another upon *6 charged
There were four in the third counts indictment. the pos- of a instrument fourth charged and the passing forged it. counts a Those sessiоn of instrument with intent to pass formal the first second. Omitting were not submitted but and only un- then there first count “did and parts alleged with to injure lawful and intent and without authority, lawfully defraud, which said and make a instrument in writing, false false fol- of made was and there the tenor so then writing : lowing Boyd
M. C. County Treasurer
Childress, 6-18 Texas H. Dillard or order Pay $44.00 J. four & Forty no/100........Dollars To Farmers & Mechanics Bank M. C. State Per Boyd Childress, Treasurer, Texas 88—254—11 County
By Frank Freeman W. H. And endorsed on the back Dillard.” thereof: —J. It will be that in count there is no as to observed one averment of the instrument in and tenor it its “purport” question, what must be construed to mean would employed language its use the second count ordinary convey. did “without lawful and with intent to authority, injure defraud, make false instrument wilfully fraudulently Dillard, be the act of J. H. then there to'
writing, purporting the back a check issued Treasurer County * * * and of the tenor County Childress being following,” out the check as first count and with (here setting continuing it, “And across back endorsеd following’averments). ‘J. Dillard, Dillard,’ the name said the back H. H. written on J. make said as to endorse- thereby writing appear thereof so Dillard, man- the said H. in such ment the said check made, would if the same were ner said endorsement so that the false have true, created transferred obligation have pecuniary instrument.” what at in the is no doubt about the pleader aiming
There in unmistakable It is charged language appel- count. second the back fide Dillard’s endorsement on bona lant forged J. check issued under Childress Treasurer of authority County The averments of the count County. second literally comply Proc., Sec. New Cr. Vol. p. Bishop’s (2d Ed.) reads:
“An endorsement on a note or is com- check which without it *7 it, so does not in law a not set out plete, constitute need part an in indictment for the thereof. For the forgery forgery of endorsement, the indictment must have such avermеnts as will make affirmatively appear offense
See Commonwealth v.
“It
here
instrument,
is not the
of said described
making
name,
but the endorsement on the back
‘A.
thereof of
C.
”Witty.’
facts
What are the
in the
case? There is no
about
present
dispute
who made the check.
testimony
The uncontradicted
shows appel
it,
lant did not make
that it
a bona
check
but
fide
issued by
Freeman,
Treasurer;
Frank W.
for the
therefore
County
acting
facts
the en
offense under the
gravamen
undisputed
check,
name
dorsement of Dillard’s
on the back of the
which was
count,
thus
second
pertinently charged
conforming
Judge
Morrow’s
McBride v.
93 Tex.
opinion
language
257,
Cr. R.
“If -it is the desire to the name of the prosecute forging endorser, the indictment should be so framed as to coincide with that effect.” the evidence to evidence, of the second count averments did coincide with the the first
the averments of count did not. . a County The check issued Treasurer was instru- complete thereon, H. Dillard” ment. The if would signature genuine, “J. an him liable as endorser and would transfer the check to make bearer, itself, was no of the check part but it not being necessary it, a and therefore did not constitute In part of it. complete R. 32 Tex. Cr. S. W. Carter Strang Tex. Cr. R. 114 S. W. it is held that a name of valid payee upon existing negotiable forgery alteration. To the mind of the writer the forgery by effort to of an count no impression averments the first convey count no positive such There is charge any forgery. on the the name of Dillard
certain averment aрpellant signed 225, accused was 29 Texas of said check. State v. Knippa, back for cot- receipt by altering obliterating charged statement: In the is found following ton. must, before testimony hear the necessity,
“The grand jury facts constituting of law. The bill for violation returning the bills to be known to the officer who is prepare offense ought indictment, with the offender should be par- and the committed, shows he has ticular which the evidence offense else, when clearly appears with that offense and something offenses, or more not have committed the two alleged. he could altered could have It is not how the defendant possibly perceived a word from the receipt, a word to or the receipt by adding erasing obliterate, out, and the entire destroy the same act blot and by *8 receipt.” 237, State, 492, 228 the
In 88 Tex. Cr. R. S. W. v. Gumpert check was and after out the of a alleged, setting passing the in thе case-—-there followed words present was done check—as thereof, It is said in the back Miller.” Roy “endorsed on the opinion: Branch’s the endorsement. check was without complete
“The 1409; Code, 1397, State, 23 v. Hennessey Penal Sections Ann. Tex. Procedure, 3, 215; vol. 354, New Crim. App. Bishop’s Tex. 5 S. W. 410. Sec. that the instrument had been was made to charge
“No attempt State, a false endorsement. v. thereon Strang altered by making 680; Tex. Cr. 219, 22 Carter S. W. Tex. Cr. R. 114 S. W. R. the under was the subject forgery,
“The instrument the In that it bore endorse- was a check. alleging the allegations, an Miller,’ it unnecessary descrip- the pleader put upon ment ‘Roy bad,”— the indictment averment, did not render thereby but tive the check. an indictment forging meaning an an on endorsement placed it seen even though Thus is indictment, in the its execution is averred check after alleged forged as the endorsement is unnecessary allеgation as an it is regarded of the authorities An examination instrument. cited of the no part R. 295 S. W. reveals Tex. Cr. in Cofer the false instru- court although alleged of this holdings many execution, ment bears an endorsement there after its placed the of the no presence endorsement constitutes variance with instrument described in the indictment with the endorsement an omitted. Where endorsement of a certain kind essential to is of or the of an instrument said endorsement completion validity must be averred 35 Tex. R. other- (Robinson v. Cr. 54) wise not.
Mention has been made of the fact that no attack was made on first count of the indictment attack motion to What by quash. could have been made on it either in that manner or motion arrest of The count is an because judgment? good charges offense, is, but the does it the offense of which charge evidence, all under if of Under appellаnt guilty any. authorities referred to and the Criminal in- Forms for approved Forms, Ed., dictments for 4th No. 410 (See Wilson’s Cr. forgery C., and Branch’s Ann. Tex. P. im- Sec. 1396) plain of the^ of the in count one indictment port language employed with check described. having forged the various cases that by would lead the inference holding thereof, Dillard,” the added words “and endorsed on the back an averment pleader simply making unnecessary regarding endorsement check after its execution. The suffi- placed anof indictment must be measured its and not ciency allegations evidence. writer the first count fails indictment with of Dillard’s en- charge forgery check, at It him dorsement all. does which offense he is shown to be not state’s own guilty A first evidence. and second counts of the in- person reading *9 dictment, of the facts as subsequently and being ignorant developed, construction of reach the conclu- ordinary could no by language first intended a for- sion that the count was charged, charge, This endorsement. is true in view of the fact especially of the gery that the second count and does so specifically pertinently charge.
In the case on the first count the were told if jury submitting from the evidence reasonable doubt that beyond found they appel- to defraud and without lawful and lant with intent authority falsely the instrument in in the in- made described fraudulently writing that the said Cochran did “in W. unlawfully, falsely dictment' J. intent to and with- injure and with defraud and fraudulently instrument in endorse said authority, writing out lawful so as to the in- the name H. Dillard make thereof the back J. Dillard” the said been endorsed strument to have appear J. The second said first count. under guilty would find they appellant in- allegations in accordance with the was submitted count the jury For some reason to said count. with reference dictment first count. No objectiоn under the guilty saw fit to find appellant first count was submitted. manner in which the interposed count does said first if in no affects question, that way However that It cannot be denied endorsement. forgery charge first count does unquestionably of it also forgery If debatable that charged itself.' it be the check between allegation would be variance the endorsement there Cr. 38 Tex. in Pierce v. held clearly and the as very proof out, the evi- 292, because as heretofore pointed R. 44 S. W. to do with the execu- had nothing that appellant dence is undisputed a bona fide instrument issued check, but that it was tion of the Childress It be County. may Treasurer of of authority County the first count upon the state- that selected jury unfortunate for evidence, under the our opinion, which to the verdict. predicate submitted. first should not have been count that that motion seeking are part appellant’s Wе of opinion also the csae reversing us amend the original judgment have sus- cannot be properly prosecution dismissal ordering trial, that the another can not assume evidence upon tained. We had, will be the same found the present be if one should sufficient heretofore are expressed If should be views record. trial court. for the guide the matter as we have been able as careful investigation
After fell into error in the conclusion we reached to make we have motion for our opinion upon state’s rehearing granting , aside and that the motion for be set appellant’s that motion should above men- particular save should granted, re-hearing j tioned, judgment reversing remanding that the original stand, it is so ordered. case should
Reversed and remanded.
LATTIMORE, case was reversed for a supposed Judge. This and the in count one allegation the proof between variаnce had, and in conviction was which indictment, which under out in our of the written instrument set included the endorsement H. Dillard opinion, original asserted that there was no such The State a check. back on the *10 as to call such materiality variance. in fact is a variance of What interest, which reversal, and one for such is a of much question many presents angles. authorities, that we allege
Without be stated may citing cattle, hundred, a or vice theft of one head of and theft prove mule, mare, versa; horse, a of a a we theft of and theft allege prove these; an assault all we a colt or a or any allege stallion, fifty— similar an or other a and assault with a prove pistol with gun, named, an on a date the commission of offense we weapon; allege date; allege a to such we and same was committed year prior prove accused,- by it was done was committed prove an offense —we named, with the but who was acting together another person commission; committed a crime as accused in such we charge named, have been done by same to accused therein prove named; killed that the accused innocent who is not we allege agent killed; an assault men, one was we allege two prove only an assault with only and a and prove with knife bludgeon, gun, articles, and named; we theft of fifty one of allege weapons instances same, in all these theft of one or more any prove in then in case or is As hold there no variance. applicable what is variance? every 63, Greenleaf, in Green- as laid down Sec. of Mr.
The definition this in court Warrington on Evidence, approved leaf — decisions, been prac- and other later 1 Texas Grim. App. —has “A between It is: disagreement followed without change. tically is matter of law in some which point and proof allegation Mr. Chap. or claim.” Underhill Sec. essential to the charge Ev., states the work on Criminal Ed. of his valuable 9 of the 3d. rule as follows: present rules for- strict technical are material. —The
“What variances relaxed, if not alto- have been this subject greatly merly governing the liberal enactment spirit by statutory abrogated, gether whether criminal determining courts of jurisdiction. the modern is, material, decided does indict- is a variance crim- inform the defendant of the correctly far fully ment so that, into consideration the is taking he act which inal him, is he not misled making introduced against proof for the defense, being put jeopardy danger or placed offense?” same definition, supra, Mr. Greenleaf’s adopts p. Cyc, is-said: id. it
p. *11 and the proof, “A where the allegations variance will not result fact that variant, same are of the signification. legal although necessarily does and the proof particular, charge general a show variance.” text, Adams v. People,
As the citations are supporting Pease, 127; 806; Com. v. 55 Pac. State v. 63 Me. Regan, Col. Brown, 82 14; 576; v. 137 Mass. 34 Neb. State Weinecke 585; In Kruger N. C. Somers v. Sneed (Tenn.) 135 Ind. 35 N. E. it is said: such it is “A as material unless variance is not now regarded the accused to danger as mislead the defense or might expose same for the offense.” twice put jeopardy being Law, Ed., 10th states as follows: Crim. Sec. Wharton's aof difference between the essential parts “Variance at law is the that, effectual, must with each other. to be agree legal proceeding or an im- is characterized as a material variance Such difference material variance. between A variance at law is such a difference material
(a) a of such is ren- essential one legal proceeding parts parts to such a that the fails. dered ineffectual degree proceeding at a An immaterial variance law is difference between (b) a affect the relation does not so essential parts proceeding as between them to destroy legal sequence. law, is of material variance.—Variance in criminal
Modern rule material, char- as unless it is of such substantive not now regarded defense, his to the accused or places acter as mislead preparing in a for the same offense.” him second jeopardy authorities, in the That involved above applied the principles variance, fact exclude claim of seems instant wholly one herein. was in count Appellant from the record plain out written instrument set of the indictment falsely making tenor, of H. Dillard. The its which included endorsement J. was that from the case inception claim the State only made the said endorsement thereby falsely such That such as it stood after endorsement. whole him was known acquiesced its claim and charge against was The facts him the trial. showed to have throughout in by appellant of his at the time of the county commissioner alleged been county he had of road work and that such precinct; forgery, to the commissioners’ court made out and presented as such he to H. for the sum of due Dillard a claim in of said county $44.00 J. road; work on said that when the claim was a warrant for allowed said amount was made and delivered to who took it to the treasurer whom check county was written pay- able sum, to H. Dillard said check delivered When next appellant. seen said check bore the endorsement Dillard,” and also the endorsеment of The Dillard appellant. “J. endorsement shown on this trial to appel- lant, and Dillard denied made same. took the having Appellant *12 stand his own behalf and facts, admitted substantially the above but claimed that Dillard him time, owed at the and that the money on said check was either to Dillard or he given credit given therefor on account by appellant. whole defense was based on authorized, belief that he was appellant’s or that he himself believed authorized, to be to Dillard’s name to said sign endorsement, and that therefore he was without intent to> wholly or defraud. injure As illustrative of we from two theory, quote special charges asked No. 4 by appellant. Special asked charge by trial was as follows: given by judge “You are instructed that a is not person guilty when he makes instrument under an writing acting authority has sufficient, he reason to believe and good does bеlieve to be in fact the authority be insufficient and though void. And the bur- den is the State to upon prove beyond reasonable doubt that the defendant the name of the witness signed Dillard on check named indictment without and without reason authority good to believe did believe that he actually had such authority.
“Therefore, unless find that the you testimony shows beyond reasonable doubt that the defendant signed name of the witness Dillard on said without believe, reason to good or actually check did believe that he had authority name, so said sign will you find him so verdict.” guilty say your No. 8 asked
Special charge refused the trial court, : follows
“Defendant requests following instructions to the jury: that if check “You are instructed named the indictment was for work done actually roads of given upon Childress County, the teams of defendant and for work Dillard, on said Roy road, then defendant would be entitled to receive the proceeds check and his endorsement of the name of H. Dillard thereon J. and if find from the
would not be forgery, you evidence that such find the defendant not was the will guilty.” you law stated below the court to the jury In his main as follows: of the indictment first count to the applicable a reasonable evidence, beyond believe from “Now, if you defraud, Cochran, intent W. doubt, that the defendant J. of Childress did, the County authority, lawful and without falsely Texas, day June, 18th on or about the State of fol- tenor make certain fraudulently to-wit: lowing, No. 2837
M. C. Boyd, Treasurer. County Texas,
Childress, 6-18-1924 or order $44.00 H. Dillard Pay four and Forty no/100..........Dollars
To the Bank State and Mechanics
Farmers Childress, Texas 88/254-11. M. C. Boyd
Per Treasurer County Frank Freeman. W. By *13 Dillard’—in that the said H. thereof: And endorsed on back ‘J. fraud- unlawfully, there falsely W. did then and Cochran J. defraud, and without lawful to injure and with intent ulently, on the back by said instrument in authority, writing writing endorse Dillard, make H. as instrument thereof name of so to said J. Dillard, find you to endorsed the said will by have-been appear first as count of the indictment the defendant charged guilty in at confinement and assess his State punishment penitentiary,” etc. There or was no to the nor to the exception charge acceptance any evidence, of even or rejection remotely suggesting presenting claim of variance. misled. He defense he
Appellant made fully only had. It was to terms own submitted in of jury appellant’s were told the trial court words that if They in choosing. plain believed a reasonable they beyond doubt that appellant falsely made the instrument set out in count name one Dillard’s on endorsement, as an and that authority check this was without defraud, intent to should they with find him injure guilty under count No. satis- presentation appears Such have been The battle out between fought factory appellant. lines. lost. He a on these made motion in Appellant
and the State of arrest judgment, but in same said nothing any variance. there could Plainly be no from a dangеr second jeopardy prosecu- tion for the offense charged him. against
We may here that say if there be such material be- discrepancy tween the indictment, an allegations made, and the proof as that in point of law essential to the crime or attempted to-be charged charged, proof failed to support averments, or meet the —such or variance discrepancy could be in raised this court in- in its first As stance. a to a requisite conviction man legal felony any accused of crime has the to demand not right that he is only proof crime, of a guilty but also he that is crime guilty particular him in the charged against indictment then before the court. The pith contention, him, we appellant’s if understand is an placing endorsement an instrument already exist- same; ence is alteration of such case it would not do instrument, him with falsely including the whole mаking endorsement, but that he must be in terms having document; short, altered en- genuine falsely making dorsement this case would not be falsely making thus endorsed. The exact seems not to have been before heretofore, this court hence need for care in precedent as making well inas correct decision of the case. particular Evidence, text
The books seem in accord. Criminal Wharton’s Ed., 10th Sec. “The says: parts document on which rests not be prosecution need set out in the indictment.” case of Gardiner v. 23 N. C. cited of the text. support From same we quote:
“The may have consisted of of a true alterations instru- ment, the same mentioned in the less making bond more or first, than was at the names of the other two adding obligors *14 consent, or without their and that of the Now knowledge obligee. rule that in such the it is a settled cases bemay charged forgery alterations; оr of the entire specially alleging forgery last be this will be charged, instrument evi- may supported by —and * * * alterations. After the alterations dence of the the instrument was, a different instrument from what it as a whole is and therefore a it is of the whole.” in its altered state forgery Vol., Procedure, 488d, 2 Crim. Sec. says: New Bishop’s on an averment the whole instrument “In is forgery, forged, material of suffices.” any part the forgery of proof
217 Proc., 1, Ed., 670, Wharton’s Crim. Vol. 10th Sec. states: “Any in a or alteration of a written instrument change genuine thereof, defraud, material means with intent or part injure to effect, of a new which alteration the instrument is given —consti- be a specifically tutes of the whole instrument and may forgery alteration, a or consist forgery to have been done alleged of the whole instrument.” fol- 573, Law, 2, contains New Crim. Vol. Sec. Bishop's : lowing the pleader “The indictment for may, alteration forgery by —if instrument, the entire the offense as
chooses, lay forgery —for — in law it is such.” 1394, says: Cyc. p. instrument, be may “If has a he defendant altered genuine instrument; he has and if with entire charged forgery therein, act, be may or he another to do the has aided procured the act himself.” doing v. cited the text. People A of cases are number supporting 401, Brotherton, 47 Cal. has the following: a distinction next made for the asserts prisoners “The point check, material law and its between forgery point * * * of a a alteration Any made for fraudulent alteration purpose. instrument, in the a material new whereby operation genuine part, Law, it, is a Cr. Sec. (2 is of the whole. Whart. given forgery is so altered the forgery And when instrument 1421). genuine ' alteration, be constituted may specially alleged, altered, it instrument As is may of the entire be alleged. forgery Weaver, 13 think of the v. Ired. We (State 491.) whole. forgery in this overruled.” objection properly therefore respect Maxwell, In Ia. is said: State v. this thereof was consisted of alteration. Evidence
“The forgery sufficient support allegation forgery out set in the indictment.” Butterick, said: Com. 100 Mass. the court v. has been that the whole instrument
“The averment material of a forgery part.” satisfied by proof Boutwell, will found in Com. v. Mass. The same holding it was decided (S. upon Strob. Floyd, C.) 124. In State authorities, that an indict- consideration, and citation of many full instrument would be supported of the whole ment alleging 26 Me. So State Flye, of its alteration. by proof *15 was made the point defense as the distinctly indictment was order, of the defendant could forgery not be convicted upon of alteration but the court held to the In proof only, contrary. Weaver, 491, State v. 35 N. C. it is said: no a “There is doubt that instrument is altered so when genuine effect, as to ait different be give may specially alleged forgery alteration, as or constituted of entire instru- forgery ment be As altered a may it is charged. of the entire forgery instrument.”
It was the of insistence the defense in said case that of evidence an alteration did a support whole charge forgery instrument.
What is the effect of an legal endorsement? Art. Revised Statutes, 1925, Civil states that an pointedly endorsement without warrants to holder in qualification course, due any the genuineness of the it stands, instrument as it is what be, purports —that and there can be no of the of such liability endorser for of the every instrument so obligation 992, 1925, endorsed. Art. further, C. a P. goes step and in so many words as as plainly language, stripped no ambiguity can needing interpretation, state, that the maker of the says endorsement makes the whole in- words, strument as well. nonessential Omitting same says: * * * “It is to make forgery written instrument by filling up over genuine or on the signature, of a writing side opposite so as to paper make as an signature appear endorsement.” State, In Wheeler v. Texas Crim. Rep. forgery shown to have been over a done by filling up genuine signature. The seems to have been of a of the whole docu- allegation forgery ment. The case was affirmed. See also v. 30 Texas Hooper Crim. App. Texas Crim. Darbyshire
So where Rep. laid of an entire instrument set out with an forgery together thereon, and the showed of the instru- proof body endorsement accused, not the but signature. ment that if the court accused wrote jury trial the name instrument, he would be guilty any part forgery. Ap- “If appeal Judge says this Davidson : defend- proving it, note or he knew it was a part forgery; ant forged the note he was as as guilty if he had any part if he wrote written Thurmond instrument.” Texas Crim. the entire made .on indictment attack was wherein the App. names, set out contained and no document several allegation
219 upheld. which of The indictment said names was forged. 51, case in State, Crawford v. 31 Texas Crim. Rep. appears forged the alleged the instrument set contained out in the indictment This at set as forged. the the out only name document beginning appeared court the the made no difference if it location of name said: that the himself. We same intended to bind party writing it taken may be “If he write his name in any part agreement, of giving as his is written for the purpose it signature, provided Texas Crim. the In Elkins v. to instrument.” authenticity in 207, “If the name of the party appears Hurt says: Rep. Judge of same it instrument, what appears, the it is in part immaterial the bottom.” We might at in the middle or at whether the top case said in an add that this have jurist might' appropriate great In Strang force on of the paper.” with “or the side equal оpposite Texas Crim. the accused was Rep. tenor, set its as true a out knowingly passing forged check, an that which included endorsement on the being alleged knew the endorsement was a showed forgery. proof accused endorsement, which was the instrument save the was genuine, of the accused part This court on the knowledge held forged. that the endorsement was at the time he the check forged,— passed as true that he was sufficientto support knowingly passed out. the entire instrument 'set those cases in which discuss appear it not necessary
We deem no in effect that the endorsement is part statements opinions can and should have They only instrument. application is on document subse- in which the endorsement placed cases instrument, or in which the false of such allega- making quent endorsement, State’s case not include the or the tion оf does forgery It such endorsement. on depend proof forgery does State, 35 Texas Crim. Rep. Overly in Robinson v. is said that if the instrument set out 34 Texas Crim. Rep. endorsement, such endorse- without would incomplete forged case, Texas is Pierce’s Crim. Rep. should be alleged. ment instant to the case vari- question to as analogous referred order. The money proof Pierce was charged.with-forging ance. amount of that he for the forged receipt his case showed no There was claim for order. money called money by genuine This court prop- order itself was forged. money the proof there fatal between such facts variance held under erly and proof. allegation
The interesting and important question here involved has led us to as thorough of same as our investigation means informa- tion permit. We are fully satisfied that the conclusion that no- dis- agreеment of law any point essential crime of be- tween the allegation exists in this proof, sound under —is the law. The sufficiency legal intended of the docu- purpose ment set out as case is for the trial court. primarily It from this plain record who tried this case was judge that the out of the check in in the indict- setting *17 ment, with together the fact that the en- name Dillard was thereon, dorsed and further that and to appellant falsely with intent injure and defraud made him instrument, fully such charged — with and that forgery, proof that he wrote the falsely endorsement on the check sufficed to his justify conviction for forgery whole instrument. so in He told the his Their jury verdict charge. was necessarily based on such of court. thus found They endorsement, of the false under guilty making instruc- tions from the court to so him find the first under count of guilty the indictment if believed the they endorsement to have been falsely made him. Under all the authorities above cited this was legal and In correct. this connection we can not forbear what quoting said in Ramsey Judge 60 Texas Forcy Crim. 209: Rep. in "There is the books much curious of subject learning clauses and officeof tenor and in the indict- forgery, purport ment for this have offense been refined courts until it is upon by sometimes difficult for one to and comprehend the office of grasp either, sometimes, us, these and refinements have it seems to gone of to the extent the substance of the overshadowing dwarfing be matter to What instruments required alleged. be sub- may has of also ject quite frequently judicial received forgery interpre- These instances tation. and illustrations are numerous and not al- ways consistent. We think in later times wholly the niceties of in for have not prosecutions been pleading forgery always recog- nized; that the trend modern of decisions is to look rather to the substance than to the form that such instruments take. can may We not be unmindful fact that with the of progress civilization in and the commerce with which business is transacted frequency notes, credit, bills, of and letters it essential to the protection commerce, and the of that a of citizen reasonable integrity for should forgery rule be established. prosecutions sensible matter of or for either barter money olden times trade commercial times, know, as but a small percent In these hand. we than form other any transactions carried on and completed are for regard due bond, checks, having drafts. While note, orders and be may individual citizen who prosecuted safety under- manifold instruments conveying at least is essential to convey moneys taking property, body fair to the protection great some shall had regard of these our are in the honesty integrity who interested people instruments.” forth, I set my in the correctness of conclusions above
Confident It at I this seems grasping can not reversal. agree regret herein variance supposed substance. overlooking shadow mislead either in or presenting such as to preparing was not defense, It then to be I have demonstrated above. ought his this that there was such mislead court into holding sufficient in- Both counts as to necessitate reversal. variance material no objec- identical were submitted practically language, dictment who battle on the offered by appellant, waged proposi- tion being the instrument that he was making tion endorsement, written, endorsement he admitted but having count, so under write. Conviction one two claimed authority *18 submitted, under the other. of this rule acquits Application being set free. The evidence shows his will overwhelmingly I record dissent. my respectfully guilt.
Roy L. Nix, Brockman, Padgitt, Eddie and Marshall Jr.
The State. 11, 1930. Delivered No. 13614. June Reported (2d) in 29 S. W.