Berry v. State

289 S.W. 412, 105 Tex. Crim. 549, 1926 Tex. Crim. App. LEXIS 622

Opinion

MORROW, Presiding Judge.

The offense is forgery; punishment fixed at confinement in the penitentiary for a period of two years.

There were two counts in the indictment, one of which charged the forgery of a check, the other the attempted passing of a forged check. In each instance the forgery was of the name of J. W. Craven. The proof relied upon was the making of a check signed L. W. Craven.

The state’s attorney before this court concedes that there is a fatal variance between the evidence and the averment. In proof of this offense, if the alleged forged instrument is available, its introduction in evidence is essential. See Wilson v. State, 92 Tex. Crim. Rep. 281; Dovaline v. State, 14 Tex. Crim. App. 812. It is likewise necessary that the instrument introduced in evidence coincide with that described in the indictment. See Fischl v. State, 54 Tex. Crim. Rep. 55; Vernon’s Ann. Tex. P. C., Vol. 2, p. 164. The variance in the present case is fatal. See Wallace v. State, 87 Tex. Crim. Rep. 527.

The bills complaining of the procedure are not sustained.

For the reason stated, the judgment is reversed and the cause remanded.

Reversed and remanded: