
    McBRIDE v. STATE.
    (No. 7070.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.
    State’s Rehearing Denied Jan. 17, 1923.)
    I. Forgery <®=>34(3), 44(</2) — Essential that • instrument be introduced in evidence and variance is fatal.
    In a prosecution for forgery, unless upon a proper predicate the forged instrument is proved ,by secondary evidence, it is essential that the written instrument described in the indictment be introduced in evidence, and- no conviction could be bad of forgery of indorsement on back of check, where indictmept set out instrument showing that injured party signed the check on its face.
    On Motion for Rehearing.
    2. Criminal law <3=51110(3) — Statement of facts cannot be amended to supply missing matter.
    Statement of facts on appeal from a conviction of forgery cannot be amended so as to supply the alleged forged check upon certificate of the trial judge and affidavit of the district attorney and court reporter, to the effect that the check was in truth and in fact introduced in evidence.
    Appeal from District Court, Titús County; R. T. Wilkinson, Judge. '
    D. W. McBride was convicted for forgery and appeals.
    Reversed and remanded.
    Wilkinson & Cook, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for forgery; punishment fixed at confinement in the penitentiary for two years.

The instrument is a check for $6, payable to D. W. McBride, or bearer. It is thus de-sci’ibed in the indictment:

“ * * * The act of T. O. Johnson, which said false instrument in writing is to the tenor following: 'Windfield, Texas, 1/11/1921. The First National Bank 88-297 of Mt. Pleasant, Pay to D. W. McBride, or bearer, $6.00/00. six dollars, C. M. McBride. D. W. McBride. T. O. Johnson.’ ”

No cheek was introduced in evidence. At least, it is not found copied in the statement of facts. In a prosecution for forgery, unless upon a proper predicate the forged instrument is proved by secondary evidence, it is essential that the written instrument described in the indictment be introduced in evidence. Bobbitt v. State, 59 Tex. Cr. R. 315, 128 S. W. 1104; Branch’s Ann. Tex. Penal Code, § 1413; Wilson v. State (Tex. Cr. App.) 243 S. W. 466. Such evidence as is found with reference to the instrument declared upon does not support the averments in the indictment,' descriptive of the alleged forged writing. We gather from the statement of facts that T. O. Johnson did not sign a check, but that his name was indorsed on the back of one. The indorsement was no’t a part of the check. Branch’s Ann. Tex. Penal Code, § 1397; Mettall v. State, 89 Tex. Cr. R. 216, 232 S. W. 316. If it is the desire to prosecute for forging the name of the indorsor, the indictment should be so framed as to coincide with the evidence to that effect.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing

HAWKINS, J.

The original opinion will disclose that this case was reversed because the statement of facts failed to contain the alleged forged clieekj The state now files a motion for rehearing, submitting in connection therewith the certificate of the trial judge and the affidavits of the district attorney and the court reporter to the effect that the check’ with the indorsements thereon was in truth and in fact introduced in evidence.

The effect of the motion is a request that this court permit the amendment of the' statement of facts originally sent to this court. We do not doubt the correctness of the certificate of the trial judge, nor of the affidavits in connection therewith relative to the cheek actually having been introduced in evidence. Notwithstanding this, we are not permitted to ponsid'er them. McConnell v. State, 85 Tex. Cr. R. 409, 212 S. W. 498, is a case directly in point, where the state was attempting to supplement the statement of facts upon the very issue involved in the instant case, but was denied that right. In Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380, the matter was presented from the other angle. In that case the alleged forged check had been omitted from the record, and for some reason appellant was seeking to supply the same. We quote the following from that opinion:

“After the statement of facts has been approved and the record made up we know of no rule of practice that will authorize parties to the case to add anything to the statement of facts. Here the appellant complains that the check was introduced in evidence but he omitted to have it copied in the statement of facts and he now asks that this omission be supplied by allowing the statement of facts to be amended so that said cheek may be incorporated. This cannot be done. If the rule insisted upon in this case should obtain and this court would hold that this omission could be supplied, we would find ourselves confronted with the proposition that statements of facts could be amended after the record reached this court.”

Upon the same proposition we cited Belcher v. State, 35 Tex. Cr. R. 168, 32 S. W. 770, and Ratcliff v. State, 29 Tex. App. 248, 15 S. W. 596. In several of the cases cited the authorities are collated, and we make no extensive review of them at this time.

The state’s motion for rehearing is overruled. 
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