Aduddell v. State , 156 Tex. Crim. 495 ( 1951 )

DAVIDSON, Judge.

Appellants, Aduddell and White, were jointly indicted and tried for the offense of passing a forged instrument. Each was assessed a penalty of two years in the penitentiary.

Separate records as to each appellant have been filed in this court and given separate docket numbers. The records are identical. We therefore consolidate the two cases and dispose of them together.

The instrument alleged in the indictment to be a forgery and passed by the appellants purported to be a bill of sale conveying certain pipe in Shackleford County to one L. C. Cox. The bill of sale as set forth in the indictment purports to have been signed by three parties, viz.: E. Krasner, H. E. White, and E • ÍD. Skipper. There is nothing to show that the names of E. Krasner and H. E. White were signed thereto as witnesses to the signature of E. D. Skipper. The bill of sale introduced upon the trial of the case showed that Krasner and White signed as witnesses.

The variance between the allegations of the indictment and the proof is apparent, and requires a reversal of the conviction.

In addition to the variance mentioned, we note that the indictment did not allege that appellant White was a principal to the commission of the offense by Aduddell, but attempted to allege facts which it is claimed are sufficient to show that White was, in fact, a principal with Aduddell. The facts stated go no further than to allege that White agreed with Aduddell to aid him in the commission of the offense and are so indefinite as to fail to charge White with any offense.

It is always the safer plan in charging one as a principal to the crime committed by another to charge such person directly with the commission of the crime, rather than to attempt to allege the facts which would constitute one a principal to the commission of a crime by another.

As to appellant Aduddell, the judgment is reversed and the cause remanded.

As to appellant White, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the court.