Cochran v. State , 115 Tex. Crim. 201 ( 1928 )

The offense is forgery; the punishment confinement in the penitentiary for three years.

The count of the indictment under which appellant was convicted charges that appellant — "did then and there unlawfully and without lawful authority, and with intent to injure and defraud, make a false instrument in writing, which said false instrument in writing so made was then and there of the tenor following:

M. C. Boyd County Treasurer Childress, Texas, 6-18, 1924. Pay to J. H. Dilliard or order ..... $ 44.00 Forty four no/100 ......... Dollars. Farmers Mechanics State Bank Per M. C. Boyd 88-254-11 Childress, Texas County Treasurer By Frank W. Freeman. 8421

And endorsed on the back thereof: ..... J. H. Dillard."

The state's testimony discloses that the check was written and signed by Frank W. Freeman, Deputy County Treasurer, after a warrant drawn by the County Clerk had been presented to him by appellant. The state's testimony further shows that appellant endorsed J. H. Dilliard's name on the check without authority.

Appellant contends that there is a variance between the proof and allegations in the indictment. His contention must be sustained. Appellant was charged with making a false instrument in writing and such instrument was described as hereinbefore set forth. It was undisputed that appellant did not make the check, the state's evidence showing that the deputy county treasurer made it. The forgery consisted in the endorsement of the payee's name on the check without authority. If appellant forged the check the proof should have shown that his act purported to be that of the deputy treasurer. Article 979 P. C. Howes v. State,3 S.W.2d 445. In the case of Pierce v. State, 44 S.W. 292, the indictment charged the forging of a postal money order, whereas, the proof disclosed that the accused forged the name of the payee to such order. In reversing the case, Judge Henderson said:

"If appellant, indeed forged the money order, then as contended by appellant, the proof should have shown that he personated the postmaster. In this case it shows no such thing. On the contrary, it shows that he forged the name of the payee of such order; that he forged his name to a receipt on the same, and obtained the money due on it. In our opinion * * * there is a complete variance between it (indictment) and the proof."

In McBride v. State, 246 S.W. 394, Judge Morrow used language as follows:

"If it is desired to prosecute for forging the name of the endorser, the indictment should be so framed as to coincide with the evidence to that effect."

In the instant case, the count of the indictment under which appellant was convicted was not so framed as to coincide with the evidence to the effect that the name of the payee of the check was forged. The endorsement, although set out in the indictment, was no part of the check. Cofer v. State,295 S.W. 189, and authorities cited.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.