
    HARVEY v. STATE.
    No. 18868.
    Court of Criminal Appeals of Texas.
    April 7, 1937.
    C. C. McDonald and J. Earl Kuntz, both of Wichita Falls, for appellant.
    
      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for passing a forged instrument; punishment, two years in the penitentiary.

Appellant insists that there is a variance between the proof and the instrument set up in the indictment. Clearly matters were set up in the indictment, as being part of the instrument in question, which were placed there after same had been executed. The State’s Attorney with this court confesses error in the matter referred to. In his brief he assents to the proposition that when the State makes unnecessary averments in its indictment, it assumes the burden of making proof thereof, and Berry v. State, 105 Tex.Cr.R. 549, 289 S.W. 412, and Fischl v. State, 54 Tex.Cr.R. 55, 111 S.W. 410, are cited.

For the error mentioned the judgment will be reversed and the cause remanded.  