
    SIMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1911.)
    1. Forgery (§ 34) — Issues, Proof, and Variance.
    The variance between an indictment for forgery, which sets out the instrument in hsee verba, including the signature “Doff G.,” and which alleges that the name was intended for “Dolph G.,” and the instrument introduced in evidence was signed by “Dolph G.,” the right name of the person whose signature was forged, is fatal.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. § 34.]
    2. Names (§ 16) — Idem Sonans.
    The doctrine of idem sonans has no application to the variance between an indictment charging the forgery of an instrument signed by “Doff G.” and the instrument introduced in evidence signed by “Dolph G.”
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 12-14; Dec. Dig. § 16.]
    3. Forgery (§ 34) — Evidence.
    Where an indictment for forgeiy sets out the instrument forged in hsee verba, it is necessary to prove the same, including the signature, literally.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. § 34.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    George Simmons was convicted of forgery, and he appeals.
    Reversed and remanded.
    H. E. Marshall, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

This appeal is prosecuted from a conviction for forgery had in the district court of Liberty county on August 10th of last year, in which appellant’s punishment was assessed at confinement in the penitentiary for a period of three years.

We deem it unnecessary to make a detailed statement of the facts in the case, though we cannot refrain from expressing the opinion that the evidence is not entirely satisfactory, though, in view of the action of the trial court in overruling the motion for a new trial, it is doubtful if we should interfere on this ground.

1. The instrument alleged to have been forged is in words and figures as follows: “Liberty Co. Texas', March the 5, I960, this is to certify that i have sold, an to be delivered to Geo Simmons one brown horse branded in my wife brand which is to be paid by the month in work for the some of $25 which is to be paid by the month in work at the some of $6 per month, this is our agreement. Doff Gillard, Geo. Simmons. Witness: B. B. Burrell.”

The instrument introduced in evidence was practically identical with that set out in the indictment, except that it was signed “Dolph Gillard.” Mr. Dolph Gillard was introduced in evidence and testified to his name, and that his name, Dolph Gillard, was signed to the instrument shown him. It will be noted that the indictment alleges that the name of Doff Gillard signed to said instrument was intended for and meant Dolph Gillard. That there is a variance between the name alleged to have been appended to the instrument and that in fact signed to it, there can be no doubt. Nor do we believe that the doctrine of idem sonans can have any application to this kind of case. The name of the grantor or signer of any instrument is always a matter of vital importance, and where, as in this case, the instrument is set out in hsee verba, it becomes important to make proof of same, including the signature literally in accordance with the instrument as contained in the indictment. This matter came before this court and received careful consideration in the ease of Fischl v. State, 54 Tex. Cr. R. 55, 111 S. W. 410, where we said: “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 Tex. App. 332; Edgerton v. State, 70 S. W. 90. See, also, Shipman v. Fulcrod, 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 Tex. App. 4; Coulson v. State, 16 Tex. App. 189; Thomas v. State, 18 Tex. App. 213; Smith v. State, 18 Tex. App. 399; and Moore v. State, 20 Tex. 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. (3d Ed.) 488; 1 Whart. Crim. Law (8th Ed.) No. 737; Ex parte Rogers, 10 Tex. App. 655-673, 38 Am. Rep. 654; Brown v. People, 66 Ill. 344. Under these authorities there is undoubtedly a fatal variance between the bill of sale set out in the indictment and that set out in the evidence.”

2. Complaint is made of the following portion of the court’s charge: “But it is not requisite in order to constitute this offense that the accused in committing the offense intended to injure or defraud any particular person, or that any particular person was injured or defrauded by the forgery, but it is sufficient if it appears that possibly some one might be defrauded thereby.” The defense was that the instrument was executed merely as a memorandum, and for this innocent purpose, and none other. The court instructed'with reference to this defense in this language: “If you believe and find from the evidence that the defendant did execute said instrument without authority from Gil-lard, yet, if you further believe from the evidence that the instrument was made only for the purpose of a memorandum and not for the purpose of holding said instrument as an executed bill of sale from Gillard for the horse mentioned, or if upon this point you have a reasonable doubt, you will find the defendant not guilty.” It is objected that the first clause of the charge above quoted is inapplicable, in that it is an abstract proposition of law not applicable to the facts of the case. We think probably, in view of the nature of the defense under the peculiar facts of this case, that it might well be held that the first clause of the charge quoted above should not have been given. However, it becomes unnecessary to decide whether for the giving of this charge we should reverse the judgment.

For the error pointed out, the judgment is reversed, and the cause is remanded.

PRENDERGAST, J, not sitting.  