
    LOFTON v. STATE.
    (No. 3893.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Forgery <@=>3íL-Mistake in Spelling— Variance.
    Under an indictment for forgery alleging that the false instrument purported to be the act of “Mariah Thorn,” which by copy showed that it was a bank cheek for $16 signed by “Ma-rih Thorn,” followed by the explanatory allegation that the name “Marih Thorn” was intended for and meant “Mariah Thorn,” there was no fatal variance between the purport clause and the spelling of the word “Mariah.”
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. <@=>34J
    
      2. Forgery <@=37 — Evidence—Check — Mistake in Spelling.
    In a prosecution for forgery of an instrument purporting to be the act of “Mariah Thorn,” the forged check, which had been copied in the indictment, and appeared to be signed by “Marih Thorn,” was admissible.
    [Ed. Note. — For other cases, see- Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. <@=37.]
    3. Forgery <@=37 — Admissibility oe Evidence.
    In a prosecution for forgery under an indictment alleging that a check for $16, purported to be the act of “Mariah Thorn,” evidence of a bank clerk that on the date of the forged check defendant presented it to him for payment as a cheek on that bank purporting to be signed by “Mariah Thorn,” that he told defendant that “Mariah Thorn” had no account at that bank, but might have an account at another hank, and that defendant on the same day presented to another witness a check for $13 on such other bank, purporting to be signed by “Etta Thorn,” and told witness that, if he would cash the check, he would pay him $3 on an account due witness, that witness telephoned to such bank to learn if the check was good, that he told defendant that “Etta Thorn” had no money in such bank, but that “Mariah Thorn” did have, that defendant told him that “Mariah Thorn” sometimes signed her name “Etta,” and that defendant took the $13 check away, and shortly returned with a $16 forged check and requested witness to cash it, was material and admissible.
    [Ed. Note. — For other eases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. <@= 37.]
    Appeal from District Oourt, Nacogdoches County; L. D. Guinn, Judge.
    Esmus Lofton was convicted of forgery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State
   PRENDERGAST, P. J.

Appellant was convicted of forgery. The indictment is in the standard approved form therefor. It alleges that the false instrument purported to be the act of “Mariah Thorn”; then alleged it was to the tenor as follows; then copied the instrument, which is a bank check for $16; and the name signed thereto is copied as “Marih Thorn.” This is followed by the explanatory allegation that the name “Marih Thorn” signed to the check was intended for and meant “Mariah Thorn.” Appellant contends that there is a fatal difference between the purport and tenor clause in the variation of the spelling of the word “Mariah” as shown above. His contention is untenable. Feeny v. State, 62 Tex. Cr. R. 588, 138 S. W. 135; Pye v. State, 71 Tex. Cr. R. 98, 154 S. W. 222; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

The uncontroverted testimony clearly shows appellant’s guilt. He neither testified nor offered any testimony. The appellant objected to the forged check when offered in evidence, because of the misspelling of the word “Mariah,” as explained above. The check was literally the same as copied in the indictment, and was properly admitted in evidence.

The court correctly admitted the testimony of John Thomas over appellant’s objection to the effect that on May 29, 1915, the date of the forged check, appellant presented to him, as a clerk of the Stone Fort National Bank, for payment, a check on that bank purporting to be signed by Mariah Thorn, that he stated to appellant at the time that Mariah Thorn had no account at that bank, but that, knowing said old negro woman, Mariah Thorn, to be a good woman, he told appellant that she likely had an account at the Commercial Guaranty State Bank, the next door. Nor did the court commit any error in admitting in evidence the testimony of S. L. Miller to the effect that on the same day appellant presented to him a check for $13 purporting to be signed by Etta Thorn on said State Bank, appellant telling Miller at the time that, if he would cash the check for him, he would pay him $3 of the amount on an account appellant was due him; this witness further testifying that he at once telephoned to said bank to learn if the check would be good. He was not permitted to tell what the bank answered him over the phone, but he testified that he at once told appellant that Etta Thorn had no'money to her credit at said bank, but Mariah Thorn did have; that appellant thereupon told him that Mariah Thorn sometimes signed her name “Etta” as well as “Mariah”; that he took that $13 cheek, left his store, was gone about an hour, and returned with a $16 forged check, as stated, and presented that to him requesting him to cash it, and stating that, if he would cash it, he would pay him $6 on his account. It was admitted by both sides that neither Mariah Thorn, nor any of her people, signed the said purported forged check, nor made it, nor authorized or consented for any person to sign or make the check. All of said testimony of said Thomas and Miller was material, pertinent, and clearly admissible testimony.

There is no error in the record, and the judgment will be affirmed. 
      <§=»Eor other eases see same topio.and KEY-NUMBER in all Key-Numbered Digests and Indexes
     