Lead Opinion
Appellant was convicted in the district court of Kaufman, county of forgery, and his punishment fixed at two years in the penitеntiary.
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 theоry was submitted in the charge.
Appellant excepted tо the court’s charge because it did not instruct the jury to return а 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 оut by quotation the alleged forged instrument but states its contents. We quote from the statement of facts as follows:
*390 “The Statе introduced in evidence check on The American Nаtional 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 indictmеnt and that offered in evidence. It is held that when the indictment undеrtakes to set out the instrument according to its tenor, there must, be an exact correspondence between the proof and allegation. Fischl v. State,
For the еrror of the refusal of the special charge, the judgment will be reversed and the cause remanded.
Reversed and remanded.
Addendum
ON MOTION FOR REHEARING.
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 thе fact that it was incorrectly transcribed into said statement of facts by the court stenographer.
There seems аn unbroken line of authorities in this State declining to permit the correction of statements of fact. The reason fоr this is clear. The statement of facts represents the agreement of both parties to a controversy in the сourt below and as agreed to by them has received thе 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,
The motion for rehearing by the State will be overruled.
Overruled.