Hurd v. State , 99 Tex. Crim. 388 ( 1925 )

Appellant was convicted in the district court of Kaufman county of forgery, and his punishment fixed at two years in the penitentiary.

We do not think this case one of circumstantial evidence. Mr. Yates swore that appellant admitted to him that he signed the alleged forged check, and that he claimed his name was Odis Rhodes. We think the complaint that the court did not charge on alibi is not sustained by the record. That theory was submitted in the charge.

Appellant excepted to the court's charge because it did not instruct the jury to return a verdict of not guilty because of an alleged variance between the check offered in evidence and that set out in the indictment. The indictment alleged the forging of a check "of the tenor following:

The American National Bank of Terrell Pay to Perkins Bros. Co. or bearer $20.00 Twenty No/100 Dollars Oddis Rhoods Terrell R. 8."

Said instrument was dated at Terrell, Texas, 3/30 1923. An innuendo averment in the indictment states that by the name and words "Oddis Rhoods" was meant and intended the name "Otis Rhodes".

The statement of facts does not purport to set out by quotation the alleged forged instrument but states its contents. We quote from the statement of facts as follows:

"The State introduced in evidence check on The American National Bank of Terrell, payable to Perkins Bros. Co., or bearer in sum of $20.00, signed by Oldis Roods, Terrell, R. 8".

We are constrained to hold that there was a variance between the instrument copied in the indictment and that offered in evidence. It is held that when the indictment undertakes to set out the instrument according to its tenor, there must be an exact correspondence between the proof and allegation. Fischl v. State, 54 Tex.Crim. Rep.; Feeney v. State,58 Tex. Crim. 152; Simmons v. State, 61 Tex.Crim. Rep.. The party whose name was alleged to have been forged appears in the statement of facts as Odis Rhodes. His name as alleged in the indictment, occurring in the alleged forged instrument, appears to be "Oddis Rhoods". Said party's name as it appears in the instrument offered in evidence is "Oldis Roods". We do not think this proof meets the test of the law requiring correspondence between the instrument set out according to its tenor, and the proof made of same.

For the error of the refusal of the special charge, the judgment will be reversed and the cause remanded.

Reversed and remanded.

ON MOTION FOR REHEARING.