
    FEENY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.
    On Motion for. Rehearing, June 14, 1911.)
    1. Criminal Law (§ 1102) — Appeal—Statement of Facts — Filing.
    A statement of facts on a criminal appeal will be stricken on motion when not filed within the time allowed therefor by the trial court, when failure to file in time is not excused.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    2. Criminal Law (§ 1105) — Appeal—Record —Certification of Original Papers.
    Original papers sent up with the record will not be considered on a criminal appeal unless certified by the clerk below as being the original papers used on the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2887-2889; Dec. Dig. § 1105.]
    On Motion for Rehearing.
    3. Forgery (§ 37) — Evidence—Admissibility.
    In a trial for forging a check of a fictitious firm, the state could show that no such firm ever existed or was known in the county, especially since the check purported to be drawn for services rendered by accused.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 37.]
    4. Forgery (§ 48) — Instructions.
    In a trial for forging a check of a fictitious firm, purported to be drawn for services rendered by accused, it was not error to refuse to submit a question of a claim of deposit for collection.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 48.]
    5. Forgery (§ 34) — Variance—Names:
    The record of a forgery case should not be treated as presenting a variance because the charge was that the forged check purported to be signed by “R. C. Cameron & Son,” whereas a critical analysis of the signature shows “R. C. Camaon & Son,” or “R. C. Camnon & Son,” especially since the check was identified as the one accused passed, and he filed an affidavit incorporating the check with the name spelled “Cameron.”
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 95-100; Dec. Dig. § 34.]
    Appeal from District Court, Potter County ; J. N. Browning, Judge.
    William H. Feeny was convicted of forgery, and he appeals.
    Affirmed.
    See, also, 58 Tex. Cr. R. 152, 124 S. W. 94A
    Reeder & Graham, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Die. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of forgery, his punishment being assessed at' three years’ confinement in the penitentiary.

Motion is made by the Assistant Attorney General to strike out the statement of facts because not filed within the time allowed by the court under orders entered. The court adjourned on the 2d of April, 1910. The court held over eight weeks. The order allowing time after adjournment of the court to file statement of facts and hills of exception was entered on the 26th day of March, allowing 60 days’ time in which appellant could prepare and file his bills of exception and statement of facts. Subsequently another order was granted extending the time to 80 days in which to file bills of exception and statement of facts. Under this order appellant had 80 days from the 26th day of March in which to file statement’ of facts and bills of exception. The bills of exception and statement of facts were not filed until the 18th of June, which was about 83 days instead of 80 allowed by the court There is no reason shown in the record why the statement of facts was not filed within the time authorized. The order of the court included as well the bills of exception as it did the statement of facts. Under this showing of the record we are of opinion the motion of the Assistant Attorney General is well taken, and same will be sustained. As the record presents the case to ns, with the exceptions and evidence eliminated, there are no questions that can be reviewed or revised. The charges given by the court are applicable to a st’ate of case provable under the indictment. With the evidence eliminated, we are unable to say that the court erred in refusing the special requested instructions.

We find among the papers what purports to be the original instrument upon which the indictment was predicated. The record shows that there' was an order entered sending up the original papers, but those found in the record are not in any way verified by certificate of the clerk as being the original papers as used on the trial, nor is that instrument, supposedly the basis of the indictment, certified as such. In fact there is no certificate of the clerk verifying or certifying that these are the original papers. It has been the practice since State v. Morris, 43 Tex. 372, that all original papers sent up must be so sent independent of and not a part of the transcript and verified by the certificate of the clerk as such original papers, otherwise they cannot be considered. The same rule laid down by the Supreme Court in State v. Morris, supra, has been followed by this court in its decisions. Carroll v. State, 24 Tex. App. 313, 6 S. W. 42; Brewer v. State, 32 Tex. Cr. R. 74, 22 S. W. 41, 40 Am. St. Rep. 760; Kennedy v. State, 33 Tex. Cr. R. 183, 26 S. W. 78.

Under the condition of the record there are no questions which authorize a reversal of the judgment, and it is therefore affirmed.

On Motion for Rehearing.

PRENDERGAST, J.

This case was reversed on a former appeal which is found in 58 Tex. Cr. R. 152, 124 S. W. 944.

1. During the trial evidence was introduced by the state to support the allegation in the count in the indictment relied on for conviction, to wit, that R. C. Cameron & Son were fictitious persons. Quite a lot of evidence was introduced showing that no such firm as R. C. Cameron & Son lived or ever lived, or was known in Waco, or Mc-Lennan county. The cheek alleged to have been forged and passed by appellant purports to have been signed, as alleged in the indictment, by R. C. Cameron & Son, in favor of William H. Eeeny, and drawn on the Provident National Bank of Waco. It is contended that this evidence was not admissible. No authority is cited in support of this contention. We are of opinion that this evidence was admissible, and this idea is strengthened by an indorsement on the back of the check in the following language: “In payment in full for services rendered. R. C. C.” The cheek having been drawn in favor of appellant by R. C. Cameron & Son, in payment in full for services rendered, would indicate that at one time contractual relations existed, between appellant and' R. C. Cameron & Son. If R. C. Cameron & Son were an existing company or firm, appellant would have known that fact inasmuch as he had performed services for them. Inasmuch as it was a fictitious firm, or fictitious persons, this would tend to fasten knowledge upon appellant of fraud sought to be perpetrated by means of the check. Having alleged the fact that R. C. Cameron & Son were fictitious persons it was necessary that evidence of that fact be before the jury. We are therefore of opinion that there was no error in this ruling.

2. Apppellant insists that’ the court erred in not instructing the jury and in refusing special instructions submitting the question that if the cheek was deposited with the First National Bank of Amarillo, where it was in fact deposited, for collection, and not for deposit, that appellant would be entitled to an acquittal. We are of opinion, under the facts, that appellant, did not deposit the check for collection, but if we are in error in that, and the other question is presented—that is, that it was left with the bank for collection—then we are still of opinion that there was no error in refusing to so instruct the jury. As before stated, if R. C. Cameron &> Son were fictitious persons, appellant knew that fact, or if they had an actual existence he knew the fact, because the indorsement on the check was in payment in full for services, indicating, as before stated, that there had been a contractual relation between the parties for which R. C. Cameron & Son owed him at least the amount stated on the face of the check, which was $475. If appellant deposited it only for the purpose of collection, then he knew it would not be collected, and having drawn money on it and.received a duplicate deposit slip, or check, at the time he did deposit’ it, and shortly after-wards drew out something over $400 in three checks, one for $330, and one for $75, and one for $25, it would show that he was intending to defraud somebody. Having collected the money from the Amarillo bank on this check, as stated, we are of opinion that it fixes the fact that it was a deposit for $475 to be placed to his credit and not for the purpose of collection, and, having drawn money, he kne^v the check would not be paid when it was sent to the Provident National Bank at Waco,, because he knew R. O. Cameron & Son had no existence for the reasons above stated. That he intended to defraud somebody is made patent by all the circumstances, and he did mot and could not have intended to defraud R. C. Cameron & Son, ■ because they were fictitious persons. Therefore he intended to defraud the Amarillo bank under the facts of this case, and, as a matter'of fact,’did defraud them, ..Appellant was seeking to use. the. Amarillo bank, innocent' parties, for the purpose ■ of defrauding and getting .the "benefit^of, the ■ fraud, knowing'that’it must fall iipon them as it could not fall upon R. O. Cameron & Son.

3. It is contended that there is a fatal variance between the allegations in the indictment, to wit, that the instrument was signed by R. C. Cameron & Son, whereas in fact the instrument was signed by “R. C. Camaon & Son,” or “ R. C. Camnon & Son.” This became an issue in the case, and the original instrument is sent up with the transcript for our inspection. On the prior decision of this case during this term, we declined to consider this original instrument sent up because not sufficiently authenticated. On this motion for rehearing we And that it has been since then sufficiently authenticated to require our consideration. We have examined it with a great deal of interest and care, and have done so time and again. It evidently was intended to be R. C. Cameron & Son. The name “R. C. Cameron & Son” in the original instrument appears to us to be that instead of “Camaon” or “Camnon,” as contended by appellant. In fact, the signature as it is would without hesitation ordinarily be taken for Cameron, unless and until special attention is called thereto and the attempt made to decipher each letter separately; even considering the writing of the- name with the attempt to figure out each letter separately and definitely, it would more nearly - resemble and actually be Cameron than any other name. It only emphasizes to us bad handwriting, as the writing of perhaps 99 out of every 100 signatures of proper names to letters and documents of any character generally are. A fair illustration of this is shown by the opinion of Judge Davidson for this court in the case of Martinez v. State, 51 Tex. Cr. R. 584, 103 S. W. 930, wherein he says: “Appellant moved the court to instruct the jury to return a verdict of not guilty on account of the alleged variance between the allegation in the indictment and the evidence adduced, in that the indictment charges the house to be the property of J. J. Wowen, and the entry .was made without the consent of said J. J. Wow-en, whereas the evidence showed that the houses was under the control of J. J. Warren. In support of this, the original indictment is sent up to this court for its inspection. We do not believe there is any merit in this contention. While the two r’s in the name Warren somewhat resembles a ‘w’, it in no wise resembles the letter ‘w’ elsewhere in the indictment as written, by the pleader, and it is evident, from an inspection of the allegation in the indictment, that there was no misapprehension as to the name Warren. This was but bad handwriting.” The principle announced in this opinion is particularly applicable here find we think the case ■ is directly in point. Again, this court, in the case of Emmons v. State, 43 S. W. 518, says: “Appellant objected to the introduction in' evidence of the order which is alleged to have been forged, on the ground of variance between it and the alleged copy thereof set out in the indictment; and he sends the indictment and original order with the transcript in this case for our inspection. He claims that the order, as copied in the indictment, in the address, contains the letter ‘i’ in ‘Chilton,’ whereas the order contains the letter ‘e.’ His contention in this regard appears to be correct; but this, in our opinion, is not at all a material variance. This, in fact, constitutes no part of the order, but merely the address. The writer does not appear in the order to have dotted what may be intended for an ‘i.’ There does not appear to be the slightest variance between the word ‘levy,’ as written in the order, and ‘Levy,’ as written in the indictment, except that in the indictment the latter ‘Levy’ appears to be written with a capital ‘L,’ whereas in the order it is a small ‘1.’ The word written in the order ‘Weeks,’ in whose favor it was drawn, may be read ‘Neeks,’ ‘Weeks,’ or ‘Meeks,’ as the first letter in the name is peculiarly shaped. It is sufficient to say that the indictment follows as near as practicable the formation of the beginning letter of said word as written in the order; and it may be called ‘Neeks,’ ‘Weeks,’ and ‘Meeks’ just as one chooses to read it. In our opinion, there is no variance between the indictment and the order introduced in evidence.” See, also, Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Ham v. State, 4 Tex. App. 672; Young v. State, 40 S. W. 793; Anderson v. State, 19 Tex. App. 299.

Again, in the case of Rowan v. State, 57 Tex. Cr. R. 634, 124 S. W. 673 (136 Am. St. Rep. 1005), which was a case of rape, it was sought to show that there was a fatal variance between the name of the injured party charged in the indictment and that proven on the trial. What the court said in that case, we think, is applicable and illustrative of the correct rule where there is claimed to be a fatal variance between the allegations and the proof. The court in that opinion said: “The ninth ground of the motion for a new trial claims that there is a variance between the bill of indictment and the proof; that the bill of indictment alleges the name of the prosecutrix to be ‘Benani May Seurlock,’ while the proof showed that the name of the prosecutrix was ‘Benoni May Seurlock.’ When the prosecutrix took the stand she testified that her name was ‘Benoni Bird May Seurlock,’ but that the name she usually went by was ‘Benoni May Seurlock,’ and there is no testimony in the case that she was ever called ‘Benani May Seurlock,’ and that this was such a variance as entitled appellant to an acquittal. The record discloses that after the witness Benoni May Seurlock had testified appellant moved the court to instruct a verdict because of the variance, and the question before - this court is, Was there such a variance as would defeat this prosecution under the indictment? If we should hold that there is a variance in this case, it must be upon the grounds that the two names are not idem sonans. Mr. Abbott, in his Trial Brief, § 680, lays down the following rule: ‘A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense.’ And Mr. Rice, in his valuable work on Evidence, lays down the following rule: ‘There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common-law technicalities, and hold rather to substance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem sonans has been much enlarged by modem decisions, to conform to the above salutary rule. The law does not treat every slight variance, if trivial, such as the omission of a letter in the name, as fatal. The variance should be a substantial and material one to be fatal.’ See section 123, vol. 3. It may be said to.be wholly immaterial as to how the word is spelled. If practically they have the same sound they will be regarded as idem sonans, and if the words have the same sound then there is no fatal variance, although the two names may have been spelled slightly different. See Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 435. And if the words can be sounded alike, without disturbing the power of the letters that is found in the variant orthography, the variance will be immaterial. See Adams v. State, 67 Ala. 89. Also see the cases of Henry v. State, 7 Tex. App. 388, and Spoonemore v. State, 25 Tex. App. 358, 8 S. W. 280. Identity of sound may be regarded as a surer method of designating the names of persons than that of depending upon mere identity in the orthography. The rule seems to be that the doctrine of idem sonans should not be too rigidly enforced, and the principal question in all cases should be as to the materiality of the variance, which becomes a fact to be determined by a jury. In an early ease the Supreme Court of Illinois has held, where material variance was claimed in the names of a conveyance, that Michael Allen, named in the deed as grantor, was, presumptively, Michael Allaine, grantee of the same property, as, also, that Otoine Allaine was, presumptively, Antoine Allaine. See Chinquy v. Catholic Bishop of Chicago, 41 Ill. 148; and see cases cited in Rapalje’s Criminal Procedure, § 83, in which a great number of cases are tabulated. It may be said that the decisions of the different courts are not uniform upon this subject, and that we can find authorities both ways upon the subject, one line of authorities holding that if a vowel is substituted that gives to the instrument a different sound, then it is a variance, and others holding that the mere fact of the change of the vowel giving it a different sound would not be a variance. However, ‘o’ sometimes is given the sound of ‘a,’ and ‘a’ sometimes the sound of ‘o.’ We therefore hold in this case that ‘Benoni’ and ‘Benani’ are practically idem sonans, and that the variance is not of sufficient materiality as could mislead the defense, and a conviction for rape upon a girl by the name of ‘Benoni’ where the indictment charged ‘Benani’ would be a complete protection, and in view of her testimony there could be no danger of appellant being put in jeopardy for the same offense.” See, also, Gentry v. State, 137 S. W. 696, recently decided, but not yet officially reported.

The whole of the testimony in this case tends to show and does show without doubt that this identical instrument and no other is the instrument which appellant is conclusively shown to have attempted to pass as true, and did pass as true, as charged in the indictment and found by the jury. In addition to this, appellant introduced in evidence his affidavit of non est factum which was made and filed in the cause on May 29, 1909, in which he identified said instrument, copying it word for word and letter for letter, spelling the name “Cameron,” and says that he did not execute said instrument or any part of the instrument declared upon, nor authorize the execution of said instrument or any part thereof, “except the in-dorsement ‘Wm. H. Eeeny’ which appears on the back thereof which is the right name of this defendant.”

There are but two objects, under our law, to be attained in cases where there is a slight claimed variance between the allegations and evidence in cases of this character: The first is that the accused shall know that the instrument which he is charged with attempting to pass and actually did pass, is the instrument which is alleged in the indictment, so that he may not be misled by the evidence thereof when introduced on the trial. The second is that it shall be so identified as that he can successfully plead former acquittal, or conviction, as the case may be, in the event of any subsequent prosecution for the same offense. In this case both of these requisites are clearly established without the shadow of a doubt.

The special charge requested by appellant, which was refused, and which is made a ground for reversal in this case, is as follows: “You are instructed that if you believe from the evidence introduced that the check for $475 has signed thereto the name ‘R. C. Camaon & Son,’ instead of the name ‘R. C. Cameron & Son,’ as charged in the indictment, or if you believe from the evidence that the name signed to said check for $475 is any other name than that of ‘R. C. Cameron & Son,’ as charged in the indictment, or if you have a reasonable doubt from the evidence as to whether the check for $475 has signed thereto the name of ‘R. C. Cameron & Son,’ as charged in the indictment, you will acquit the defendant,” etc.

In our opinion the appellant was not injured by the refusal of the lower court to give this charge, and there was, therefore, no error by the lower court in refusing it.

4. In deciding this case at a former day of the term affirming it, we then declined to consider the statement of facts, which was filed beyond the time permitted by law, without proper order of the court allowing this additional time. Since then it has been shown to us that we were in error about that, and that the statement of facts was filed within the time permitted by law and as allowed by the court. So we have fully considered the statement of facts.

There being no reversible error in the trial of this case, the motion for rehearing will therefore be in all things overruled.  