Fischl v. State , 54 Tex. Crim. 55 ( 1908 )

In the motion for new trial filed in this cause by counsel for appellant, complaint was made in the eighth paragraph thereof that "the verdict is contrary to the law and the evidence and is not supported by the evidence." On the original submission there was no brief or argument filed on behalf of appellant. In the record there was inserted in the indictment, as a part of it, a printed form of a bill of lading of the Missouri, Kansas Texas Railway Company of Texas. A like printed form was in the statement of facts which so far as our examination went was identical in every respect with the indictment. On motion for rehearing, however, counsel for appellant call our attention to the fact, which is verified by a critical examination of the record, that there was a substantial variance between the bill of lading set out in the indictment and the one introduced in evidence. The bill of lading copied in the indictment contains the following stipulation:

"And it is further stipulated and agreed that any claim that the shipper, consignor, or consignee may have or prefer against the Missouri, Kansas and Texas Railway Company of Texas on account of loss or damage occurring on the line of the Missouri, Kansas and Texas Railway Company of Texas shall be presented to some general officer or agent of the said company within ninety days after said loss or damage has been sustained." The stipulation in the bill of lading offered in evidence is as follows: "And it is further stipulated and mutually agreed that any claim that the shipper, consignor or consignee may have against the Missouri, Kansas Texas Railway Company of Texas on account of loss or damage occurring on its lines, or on the linesof any of its connecting carriers, over which this shipment may move by virture hereof, be presented in writing to some general officer or agent of said Railway Company within ninety-one days after said loss or damage shall have been sustained." It seems to have been universally held that where an indictment undertakes to set out the forged instrument according to its tenor that the strictest proof is required, and that this is furnished only by an exact copy. Such is the holding of this court in the cases of Baker v. State, 14 Texas Crim. App., 332; Edgerton v. State, 70 S.W. Rep., 90; see also Shipman v. Fulcrod, 42 Tex. 248 [42 Tex. 248]. In the Edgerton case Judge Henderson says: "We understand that tenor imports an exact copy and requires the strictest proof." See also Roberts v. State, 2 Texas Crim. App., 4; Coulson v. State, 16 Texas Crim. App., 189; Thomas v. State, 18 Texas Crim. App., 213; Smith v. State, 18 Texas Crim. App., 399; and Moore v. State, 20 Texas Crim. App., 233. On this same question Mr. Bishop says: "If the indictment professes to set out a written instrument by its tenor, whether the law has made so exact an averment necessary in the particular case or not, the proof must conform thereto with almost the minutest precision." (1 Bish. Crim. Proc., 3 ed., 488; 1 Whart. Crim. L., 8 ed., No. 737.) Ex parte Rogers, 10 Texas Crim. App., 655 -73; Brown v. The People,66 Ill. 314. Under these authorities there is undoubtedly a fatal variance between the bill of lading set out in the indictment and that set out in the evidence. This necessitates a reversal of the case. The motion for rehearing is, therefore, granted and the judgment reversed and the cause remanded.

Reversed and remanded.