White, Presiding Judge.
Before announcing ready for trial, defendant submitted to the court his exceptions to the indictment, upon which he based a motion to quash the same, and said exceptions and motion to quash were overruled by the court. The first ground of the motion to quash was that it does not appear from said indictment that the same was presented in the district court of Freestone county. In so far as this exception is applicable to said indictment, it reads as follows, viz.:
“In the name and by the authority of the State of Texas: The grand jurors in and for the county of Freestone and State of Texas, duly elected, tried, impaneled, sworn and charged in the district court of said Freestone county, Texas, at its February term, A. D. 1884, diligently to inquire into and true presentment make of all offenses committed within the county of Freestone against the penal laws of the State of Texas, upon their oaths present and charge that,” etc.
It is to be noted that though the grand jury was a grand jury for Freestone county, impaneled, sworn and charged in the district court of Freestone county, to inquire of offenses committed in Freestone county, it does not appear by direct affirmative allegation that they presented this indictment in the district court of Freestone or any other county.
Amongst the requisites of an indictment prescribed by the Code of Criminal Procedure, the second requisite is that “it must appear therefrom that the same was presented in the district- court of the [221]*221county where the grand jury is in session.” (Code Crim. Proc., art. 420.) This ground of the motion to quash was well taken, and should have been sustained even though the defect pointed out was one of mere form. Any requisite of the statute, whether formal or substantial, should and must be complied with in framing the indictment; the only difference being that defects in matters of form may be corrected under authority of the court, whilst matters of substance can not. (Bosshard v. The State, 25 Texas Sup., 207; State v. Hilton, 41 Texas, 565; Matthews v. The State, 44 Texas, 376; Long v. The State, 1 Texas Ct. App., 466; Houck v. The State, 1 Texas Ct. App., 357; Walker v. The State, 7 Texas Ct. App., 52.)
Another objection urged to the indictment is that it does not set out the alleged forged instrument according to its tenor and haze verla, nor does it profess to do so; and no good cause is shown why it was not done. The allegation is that “ said voucher or check is in substance and effect as follows, to wit.” Such an allegation does not imply tenor and hoce verla. (Baker v. The State, 14 Texas Ct. App., 332; Coulson v. The State, 16 Texas Ct. App., 189.) Whilst in some offenses it is permissible, as, for instance, in perjury or swindling, to set forth the instrument by its substance and effect (Gabrielsky v. The State, 13 Texas Ct. App., 436; Baker v. The State, 14 Texas Ct. App., 332), yet we are aware of no case holding that such pleading would be sufficient in forgery. Mr. Bishop, speaking of the necessity of setting out the forged instrument, says “the indictment, whether for forging, or having it in possession with the intent to utter it, must by the common law rules set out such forged writing according to its tenor; its mere substance or effect will not suffice. The object of which requirement is, as commonly stated, to enable the court to judge whether or not it is an instrument whereof forgery may be committed. If the instrument is lost or destroyed, or in the defendant’s possession, or otherwise where access cannot be had, the disabling fact may be alleged, and then the substance only will suffice.” (2 Bish. Crim. Proc. (3d ed.), § 403; 2 Leach, C. C. (4th ed.), 597; 2 East, P. C., 975; 2 Hawks, 248; note to Wright v. Clements, 2 Lead. C. C. (Bennett & Heard, 2d ed.), 94; 2 Archb. Cr. Pr. & Pl., Pomeroy’s Noles, 1567.)
Again, it is claimed that the indictment is bad for uncertainty in that it describes the instrument in the alternative as “« school voucher or checks In The Commonwealth v. Gray, 2 Gray (Mass.), 501, it was held that an indictment was sufficient which alleged that the defendant had in his custody and possession ten counterfeit bank bills or promissory notes, payable, etc., knowing them to [222]*222be counterfeit and with intent to utter and pass them,—it being evident that “ promissory note ” was used merely as explanatory of “ bank bill,” and meant the same thing. (1 Bish. Crim. L. (3d ed.), § 590.) The allegation here is manifestly different from those in Potter v. The State, 39 Texas, 388, and Castello v. The State, 36 Texas, 324, which were held bad for duplicity.
We think the allegation that the voucher or check was signed by the trustees of Bethlehem School Community, Ho. 51, is sufficiently explicit. The allegation is that the instrument purported to be signed by them, and that it was their act (naming them), “as trustees for Bethlehem School Community, Ho. 51.” It showed that they were officers, and purported to act in their official capacity, to wit, as trustees of the school community. (Penal Code, art. 436.)
Hor is the allegation that the instrument “ was forged in such a manner as, if true, would have effected a transfer of certain money, property, to wit, §36.60,” etc., repugnant to the tenor and legal effect of the instrument, as shown, had it been set out by its tenor and effect. It does not purport to create a pecuniary obligation upon the drawers or signers, but in its recitals proposes expressly to transfer out of the public school fund of the county, in the hands of the county treasurer, the sum of money named as belonging to Bethlehem School Community, Ho. 51, to the teacher, for his services in the public free school of said community.
As to whether there is repugnancy in the purport and tenor clauses of the indictment with regard to names is not a question which arises on exception to this indictment, since we have already held that the instrument has not been set out by its tenor. Had it been set forth by its tenor, then there might have been not only plausibility but force m the objection urged, because such repugnancy in pleading is always fatal (Roberts v. The State, 2 Texas Ct. App., 4), just as a variance in proof, where tenor is relied on, is also always fatal; tenor importing invariably strict exactness in description, which must be met by strict exactness in the proof, even in the names appearing in the instrument, unless they are idem sonans. (Id.; 2 Bish. Crim. Proc., § 406; Parchman v. The State, 2 Texas Ct. App., 228; Burgamy v. The State, 4 Texas Ct. App., 572; Hunter v. The State, 8 Texas Ct. App., 75; 2 Archb. Crim. Prac. & Plead. (Pomeroy’s Notes), p. 1567; Hardeman v. The State, 16 Texas Ct. App., 1.)
When an indictment undertakes to set forth, as in forgery or libel, a document according to its “ tenor,” or “ as follows,” then any variance as to the words of the document, unless such variance be mere fault of spelling, is fatal. (Whart. Crim. Evid., 8th ed., § 114.) [223]*223Other objections are ably urged to the indictment in the briefs of counsel for appellant, but the foregoing discussion disposes of those deemed material.
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White, Presiding Judge.
Before announcing ready for trial, defendant submitted to the court his exceptions to the indictment, upon which he based a motion to quash the same, and said exceptions and motion to quash were overruled by the court. The first ground of the motion to quash was that it does not appear from said indictment that the same was presented in the district court of Freestone county. In so far as this exception is applicable to said indictment, it reads as follows, viz.:
“In the name and by the authority of the State of Texas: The grand jurors in and for the county of Freestone and State of Texas, duly elected, tried, impaneled, sworn and charged in the district court of said Freestone county, Texas, at its February term, A. D. 1884, diligently to inquire into and true presentment make of all offenses committed within the county of Freestone against the penal laws of the State of Texas, upon their oaths present and charge that,” etc.
It is to be noted that though the grand jury was a grand jury for Freestone county, impaneled, sworn and charged in the district court of Freestone county, to inquire of offenses committed in Freestone county, it does not appear by direct affirmative allegation that they presented this indictment in the district court of Freestone or any other county.
Amongst the requisites of an indictment prescribed by the Code of Criminal Procedure, the second requisite is that “it must appear therefrom that the same was presented in the district- court of the [221]*221county where the grand jury is in session.” (Code Crim. Proc., art. 420.) This ground of the motion to quash was well taken, and should have been sustained even though the defect pointed out was one of mere form. Any requisite of the statute, whether formal or substantial, should and must be complied with in framing the indictment; the only difference being that defects in matters of form may be corrected under authority of the court, whilst matters of substance can not. (Bosshard v. The State, 25 Texas Sup., 207; State v. Hilton, 41 Texas, 565; Matthews v. The State, 44 Texas, 376; Long v. The State, 1 Texas Ct. App., 466; Houck v. The State, 1 Texas Ct. App., 357; Walker v. The State, 7 Texas Ct. App., 52.)
Another objection urged to the indictment is that it does not set out the alleged forged instrument according to its tenor and haze verla, nor does it profess to do so; and no good cause is shown why it was not done. The allegation is that “ said voucher or check is in substance and effect as follows, to wit.” Such an allegation does not imply tenor and hoce verla. (Baker v. The State, 14 Texas Ct. App., 332; Coulson v. The State, 16 Texas Ct. App., 189.) Whilst in some offenses it is permissible, as, for instance, in perjury or swindling, to set forth the instrument by its substance and effect (Gabrielsky v. The State, 13 Texas Ct. App., 436; Baker v. The State, 14 Texas Ct. App., 332), yet we are aware of no case holding that such pleading would be sufficient in forgery. Mr. Bishop, speaking of the necessity of setting out the forged instrument, says “the indictment, whether for forging, or having it in possession with the intent to utter it, must by the common law rules set out such forged writing according to its tenor; its mere substance or effect will not suffice. The object of which requirement is, as commonly stated, to enable the court to judge whether or not it is an instrument whereof forgery may be committed. If the instrument is lost or destroyed, or in the defendant’s possession, or otherwise where access cannot be had, the disabling fact may be alleged, and then the substance only will suffice.” (2 Bish. Crim. Proc. (3d ed.), § 403; 2 Leach, C. C. (4th ed.), 597; 2 East, P. C., 975; 2 Hawks, 248; note to Wright v. Clements, 2 Lead. C. C. (Bennett & Heard, 2d ed.), 94; 2 Archb. Cr. Pr. & Pl., Pomeroy’s Noles, 1567.)
Again, it is claimed that the indictment is bad for uncertainty in that it describes the instrument in the alternative as “« school voucher or checks In The Commonwealth v. Gray, 2 Gray (Mass.), 501, it was held that an indictment was sufficient which alleged that the defendant had in his custody and possession ten counterfeit bank bills or promissory notes, payable, etc., knowing them to [222]*222be counterfeit and with intent to utter and pass them,—it being evident that “ promissory note ” was used merely as explanatory of “ bank bill,” and meant the same thing. (1 Bish. Crim. L. (3d ed.), § 590.) The allegation here is manifestly different from those in Potter v. The State, 39 Texas, 388, and Castello v. The State, 36 Texas, 324, which were held bad for duplicity.
We think the allegation that the voucher or check was signed by the trustees of Bethlehem School Community, Ho. 51, is sufficiently explicit. The allegation is that the instrument purported to be signed by them, and that it was their act (naming them), “as trustees for Bethlehem School Community, Ho. 51.” It showed that they were officers, and purported to act in their official capacity, to wit, as trustees of the school community. (Penal Code, art. 436.)
Hor is the allegation that the instrument “ was forged in such a manner as, if true, would have effected a transfer of certain money, property, to wit, §36.60,” etc., repugnant to the tenor and legal effect of the instrument, as shown, had it been set out by its tenor and effect. It does not purport to create a pecuniary obligation upon the drawers or signers, but in its recitals proposes expressly to transfer out of the public school fund of the county, in the hands of the county treasurer, the sum of money named as belonging to Bethlehem School Community, Ho. 51, to the teacher, for his services in the public free school of said community.
As to whether there is repugnancy in the purport and tenor clauses of the indictment with regard to names is not a question which arises on exception to this indictment, since we have already held that the instrument has not been set out by its tenor. Had it been set forth by its tenor, then there might have been not only plausibility but force m the objection urged, because such repugnancy in pleading is always fatal (Roberts v. The State, 2 Texas Ct. App., 4), just as a variance in proof, where tenor is relied on, is also always fatal; tenor importing invariably strict exactness in description, which must be met by strict exactness in the proof, even in the names appearing in the instrument, unless they are idem sonans. (Id.; 2 Bish. Crim. Proc., § 406; Parchman v. The State, 2 Texas Ct. App., 228; Burgamy v. The State, 4 Texas Ct. App., 572; Hunter v. The State, 8 Texas Ct. App., 75; 2 Archb. Crim. Prac. & Plead. (Pomeroy’s Notes), p. 1567; Hardeman v. The State, 16 Texas Ct. App., 1.)
When an indictment undertakes to set forth, as in forgery or libel, a document according to its “ tenor,” or “ as follows,” then any variance as to the words of the document, unless such variance be mere fault of spelling, is fatal. (Whart. Crim. Evid., 8th ed., § 114.) [223]*223Other objections are ably urged to the indictment in the briefs of counsel for appellant, but the foregoing discussion disposes of those deemed material.
With a view to the probabilities of another trial, we will examine two questions reserved by exception to the ruling of the court as to evidence. Over objection of defendant, the witness Boyd, who had been called as an expert, made an imitation or copy of the signature of the witness Cyrus, whose name was one of those signed to the instrument charged to be forged, and the copy or imitation made by Boyd was exhibited to and handed to the jury, with the signature of the witness Cyrus, for their inspection and comparison, in order to show how easily the name could be counterfeited or forged. Such evidence was wholly immaterial and inadmissible. It could throw no light on the transaction. It might have been perfectly easy for Boyd to counterfeit this signature or any other, and still that fact did not tend in the slightest degree to prove either that defendant did it or that he was competent even to do it. We can readily imagine how such incompetent and inadmissible evidence was calculated to injure and prejudice defendant’s case before the jury, and its admission alone would have necessitated a reversal of the conviction.
The State sought to impeach defendant’s witness Morgan by proving contradictory statements made by him out of court. After-wards defendant proposed to prove the genera.! good character of the witness, and' his reputation for truth and veracity. This the court refused to permit him to do. Mr. Greenleaf says: “Where evidence of contradictory statements by a witness, or of other particular facts, . . . is offered by way of impeaching his veracity, his general character for truth being thus in some sort .put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth.” (1 Greenl. Evid. (13th ed.), § 469.) Mr. Wharton says the party calling a witness may sustain him by calling witnesses to show that his reputation for truth and veracity is good. (Whart. Grim. Evid. (8th ed.), § 491.) This has always been the rule in Texas, in both civil and criminal cases. (Johnson v. Brown, 51 Texas, 65; Burrell v. The State, 18 Texas, 713; Dixon v. The State, 15 Texas Ct. App., 271.) The court erred in refusing to allow the proposed testimony to sustain the impeached witness.
Several complaints are urged against the charge of the court, but we will not notice them now, as the same objections may not arise at another trial. For the errors discussed and pointed out, the judg[224]*224ment is reversed, and because the indictment is fatally defective in matter of substance as well as form, the prosecution under it is dismissed.
Reversed and dismissed.
[Opinion delivered May 13, 1885.]