Cobb v. State

The offense is forgery, and the punishment is two years in the penitentiary.

The testimony is entirely sufficient and seems to be without dispute to the effect that the appellant forged the following instrument in writing:

"LIBERTY CAFE No. 3396

The Place of Quality

Beaumont Texas, 1/3 1925

Pay to H. C. Taylor or order $42.50 Forty-Two ............................... 50/xx Dollars

TO THE TEXAS NATIONAL BANK

LIBERTY CAFE. Beaumont, Texas. By Geo. Angelo."

Endorsed on back of instrument in writing: "H. C. Taylor"

By his first complaint appellant alleges that the court erred in refusing to instruct a verdict of not guilty. The court ruled correctly in this matter. As above stated, the evidence not only shows the guilt of appellant but it shows it without dispute in our judgment.

By various complaints appellant contends that there is a variance between the allegations in the indictment and the proof offered on the trial. The record discloses that the check offered in evidence was identical with the one described in the indictment save that it shows that it had been endorsed by H. C. Taylor and had written across it the word forgery. The party to whom the check was given testified that before he took the check he saw the appellant endorse the back of it with the name of H. C. Taylor, and afterward the bank to whom it was presented for payment wrote across the face of it the word forgery. These facts were insufficient to show a variance. Mr. Branch correctly states the rule on page 860 of his P. C., as follows:

"When a variance is claimed it should be remembered that the state is not required to allege or prove that the instrument in writing alleged to be forged was burdened or ornamented with stamps, monograms, memorandums, indorsements, or writings, which are not a part of the alleged forgery relied on or which were placed on such instrument subsequent to the alleged forgery. Proof that the instrument alleged to be forged had on it those things or added matters which were unnecessary to set out in the indictment will not cause a variance between the allegations and the proof. Labbaite v. State, 6 Tex.Crim. App. 262. Hennesy v. State, 23 Tex.Crim. App. 354, 5 S.W. 215. Burks v. State, 24 Tex.Crim. App. 326, 6 S.W. 300. De Alberts v. State, 34 Tex.Crim. Rep., 31 S.W. 391. King v. State,38 S.W. 191. Leslie v. State, 47 S.W. 368. Davis v. State,156 S.W. 1171."

Appellant also contends that as the check was not purported to be signed by the person who was authorized to draw funds belonging to the Liberty Cafe, that it was a nullity and that forgery could not be predicated upon it. Art. 939, Branch's P. C., provides that the term "another" as used in the forgery statutes applies to any other person except the person engaged in the forgery. The check purported to be signed by the Liberty Cafe, and the fact that the name signed to it was fictitious in no way enured to the benefit of the appellant. On the contrary, under the terms of the statute itself, this was sufficient on which to predicate an action for forgery.

Objection is made to the court's action in permitting the County Attorney to reproduce the testimony of a witness who had moved out of the state. The court's action in this matter was in conformity with the precedents. Besides, the bill itself states no facts which would show that said testimony was not admissible. It has been repeatedly held that a mere statement of the ground of objection in a bill of exception is not a certificate of the judge that the facts which formed the basis of the objections are true. Smith v. State, 4 Tex.Crim. App. 630. Robbins v. State, 272 S.W. 176. See Sec. 209, Branch's Ann. P. C. for full collation of authorities on this question.

There being no error shown in the record, the judgment is affirmed.

Affirmed.

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.