269 S.W. 439 | Tex. Crim. App. | 1925
Lead Opinion
Appellant was convicted in the district court of Kaufman county of forgery, and his punishment fixed at two years in the penitentiary.
We do not think this case one of circumstantial evidence. Mr. Yates swore that appellant admitted to him that he signed the alleged forged check, and that he claimed his name was Odis Rhodes. We think the complaint that the court did not charge on alibi is not sustained by the record. That theory was submitted in the charge.
Appellant excepted to the court's charge because it did not instruct the jury to return a verdict of not guilty because of an alleged variance between the check offered in evidence and that set out in the indictment. The indictment alleged the forging of a check "of the tenor following:
The American National Bank of Terrell Pay to Perkins Bros. Co. or bearer $20.00 Twenty No/100 Dollars Oddis Rhoods Terrell R. 8."
Said instrument was dated at Terrell, Texas, 3/30 1923. An innuendo averment in the indictment states that by the name and words "Oddis Rhoods" was meant and intended the name "Otis Rhodes".
The statement of facts does not purport to set out by quotation the alleged forged instrument but states its contents. We quote from the statement of facts as follows: *390
"The State introduced in evidence check on The American National Bank of Terrell, payable to Perkins Bros. Co., or bearer in sum of $20.00, signed by Oldis Roods, Terrell, R. 8".
We are constrained to hold that there was a variance between the instrument copied in the indictment and that offered in evidence. It is held that when the indictment undertakes to set out the instrument according to its tenor, there must be an exact correspondence between the proof and allegation. Fischl v. State, 54 Tex.Crim. Rep.; Feeney v. State,
For the error of the refusal of the special charge, the judgment will be reversed and the cause remanded.
Reversed and remanded.
Addendum
The state moves for a rehearing in this case and seeks as part of its motion a correction of the statement of facts and accompanies the motion with the original check introduced in evidence, and also with proof of the fact that it was incorrectly transcribed into said statement of facts by the court stenographer.
There seems an unbroken line of authorities in this State declining to permit the correction of statements of fact. The reason for this is clear. The statement of facts represents the agreement of both parties to a controversy in the court below and as agreed to by them has received the solemn sanction of the trial court. We regret that we can not grant this motion. The authorities are discussed and cited to some extent in McBride v. State, 93 Tex.Crim. Rep..
The motion for rehearing by the State will be overruled.
Overruled. *391
