
    BERRY v. STATE.
    (No. 10521.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.)
    1. Forgery i&wkey;>44(!/2) — Forged instrument must be.introduced in evidence, if available.
    In proof of forgery, alleged forged instrument, if available, must be introduced in evidence.
    2. Forgery <&wkey;>34(2) — instrument introduced in evidence must coincide with that described in indictment.
    To convict of forgery, alleged forged instrument introduced in evidence must coincide with that described in indictment.
    3. Forgery 4&wkey;34(8) — Variance between indictment and proof as to first initial of name forged held fatal.
    Variance between indictment charging forgery of name of J. W. C. on check and proof of making of check signed L. W. G. held fatal.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    W. M. Berry was convicted of forgery, and he appeals..
    Reversed and remanded.
    • Wallace Malone and Mack Taylor, both of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty.-, of Groesbeck, for the State.
   MORROW, P. J.

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 cheek,, 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. Cr. R. 281, 243 S. W. 466; Dovalina v. State, 14 Tex. App. 312. It is likewise necessary that the instrument introduced in evidence coincide with that described in the indictment. See Fisehl v. State, 54 Tex. Cr. R. 55, 111 S. W. 410; Vernon’s Ann. Tex. P. C. vol. 2, p. 164. The variance in the present case is fatal. See Wallace v. State, 87 Tex. Cr. R. 527, 222 S. W. 1104.

The bills complaining of the procedure are not sustained.

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