
    SMITH v. STATE.
    (No. 3538.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    Criminal Law <§^>]167— Refusal to Quash Count in Indictment — Prejudicial Error.
    Where accused was found guilty under the-second count of an indictment, charging an offense, it was not prejudicial error to refuse to-quash the first count, which was defective, and under which no evidence was admissible that was not admissible under the second count on the first being quashed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. ®=»11G7.]
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    Leonard Smith, alias Eli Jackson, was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    C. C. Parker and W. J. Crider, both of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. •
   HARPER, J.

The indictment against appellant contained two counts; one charging him with forgery, and the other with passing a forged instrument. When tried, he was found guilty under the second count in the indictment, the one charging him with passing a forged instrument, and his punishment assessed at' two years’ confinement in the penitentiary.

In the first count in the indictment, a motion to quash the indictment would show it charged that appellant did mate a false instrument in writing, purporting to he the act of Robert Lundell, while the alleged false instrument is set forth in the indictment and is alleged to be signed Robert Londell. No such variance, if variance it he held to he, appears in the second count in the indictment ; the second count reading:

“And the grand jurors aforesaid, upon their oaths aforesaid, in said county and state, at said term, do further present to said court that Leonard Smith, alias Eli Jackson, in said county and state, on or about the 4th day of January, in the year of our Lord nineteen hundred and fifteen, did then and there willfully, knowingly, and fraudulently attempt to pass as true, to one L. E. Shelby, a false and forged instrument, in writing, which had theretofore been made without lawful authority, and with intent to defraud, and was then of the tenor following: •
“ ‘Austin, Texas, 1/4/1915. No.
“ ‘The Austin National Bank
“ ‘511
“‘Pay to elie Jackson.Or Bearer $9.00
nine .Dollars
“ ‘Robert Londell.’
“Indorsed on margin of check: ‘U. S. Government Depository.’
“And which said instrument in writing the said Leonard Smith, alias Eli Jackson, then and there well knowing to be false and forged, he (the said Leonard Smith, alias Eli Jackson) did attempt to pass the same as true, with intent to injure and defraud, against the peace and dignity of the state.”

If the court erred in refusing to quash the first count in the indictment, it would not present reversible error, as appellant was found guilty under the second count in the indictment, which is a good count. Whether there had been a count charging forgery or not, it would have been necessary to introduce evidence that the instrument appellant passed was a forgery, before he could be convicted of passing it under the second count in the indictment. In the case ■of Vincent v. State, 55 S. W. 819, it was held that refusal to quash the second count in the indictment is harmless error, where the conviction was applied by the court to the first count in the Indictment. In this case the jury specifically found appellant guilty under the second count in the indictment, and, as refusal to quash the first count rendered no ■evidence admissible that would not have been admissible had the court sustained the motion, the bills present no error. Lafferty v. State, 41 Tex. Cr. R. 606, 56 S. W. 623; Butler v. State, 43 S. W. 992; Crook v. State, 39 Tex. Cr. R. 252, 45 S. W. 720.

As appellant made his motion to quash the first count before announcing ready for trial, a more difficult question would be presented, if the refusal to quash it rendered admissible testimony which would otherwise not have been admissible.

But we have no such case before us, and the judgment will therefore be affirmed. 
      (g^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     