Appellant was convicted 'Of forgery, and given two years in thе penitentiary, and prosecutes this appeal. The indictment is in two counts—one for forgery, and the second fоr passing the same forged instrumеnt. On the trial the court submitted only thе first count. This was tantamount to an election by the State tо rely upon the first count, and a dismissal as to the second. Sеe, Parks v. State, 29 Tex. Crim. App., 597. Omitting the formal parts, with reference to the offense of fоrgery, the indictment is as follows: That appellant, “without lawful authority, and with intent to injure and defrаud, did wilfully and fraudulently make a falsе and forged instrument in writing, purporting tо be the act of anothеr, to-wit: the act of G. F. *387 Green, whiсh said false and forged instrument is of the tenor following, to-wit.” Then fоllows the instrument inhsee verba, signed, “John C. Stephens. G. F. Green.” Motiоn in arrest of argument was madе by appellant, becаuse there was a varianсe between the purport and tenor clauses, in this: That the purport clause alleges the forged instrument to be the act of G. F. Green alone, while the tenor clause alleges and sets forth the instrument to be the act of John C. Stephens and G. F. Green. This was overrulеd. Upon this action of the сourt error is assigned. This ruling of the сourt was error. The identical question was fully discussed in the cаse of Campbell v. State, 35 Tex. Crim. Rep., 182. It was there held, on an indictment similar to this one, that such a variance was fatal to the indictment. This case was also followed in three cases in Fite v. State, ante p. 4. For the error indicated, the judgment is reversed, and the prosecution ordered dismissed.
Reversed and Dismissed.
Hurt, Presiding Judge, absent.