Ralph Gilbert ACUFF, Appellant,
v.
The STATE of Texas, Appellee.

Paul W. Anderson, Marshall, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for passing as true a forged instrument; the punishment, five years.

The instrument set out in the indictment is a check drawn on The Waggoner National Bank, signed by O. H. Edwards as maker in the sum of $155.00, payable to the order of D. F. Clough, and upon the face of which is the word "forged."

In considering a similar case in Payne v. State, 391 S.W.2d 53, this court said:

"Appellant correctly, we think, contends that the instrument set out in the indictment could not be the subject of forgery or of passing a forged instrument because it shows on its face to be a forged instrument. Bagley v. State, 63 Tex. Cr.R. 606, 141 S.W. 107; Green v. State, 63 Tex. Crim. 510, 140 S.W. 444; Rollins v. State, 22 White & W. 548, 3 S.W. 759.

"The check identified as that passed and which was introduced in evidence without objection is identical with the check set out in the indictment according to its tenor. * * *."

For reasons set out in Payne, the judgment in this cause is reversed and the prosecution upon the present indictment is ordered dismissed.