
    Delbert BOATRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 27271.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1954.
    
      Marvin C. Hanz, San Angelo, for appellant.
    Wesley Dice, State’s Atty., Austin,' for the State.
   MORRISON, Judge.

The offense is attempting to pass a forged instrument; the punishment, 2 years.

In view of our disposition of this case, a recitation of the facts shall not be deemed necessary other than to observe that, as in most cases of this nature, the proof of the knowledge on the part of the utterer that it was a forged instrument was deducible only from circumstances. There is no direct evidence that the appellant made the forged instrument or that he knew that it was a forgery when he attempted to pass it,

Appellant objected to the failure of the court to charge on circumstantial evidence.

In Nichols v. State, 39 Tex.Cr.R. 80, 44 S.W. 1091, 1092, we said:

“In the offense of passing a forged instrument, ' an : essential ingredient thereof is that such instrument was forged,:,a»d that the utterer .knew that it was at the time, he passed it. - The mere passing of an instrument amounts to nothing unless the other essential elements be established, to-wit, the forgery and the knowledge on the part of the utterer.”

The Nichols case has been followed through the years. See Johnson v. State, 82 Tex.Cr.R. 585, 200 S.W. 522; Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428; Mixon v. State, 129 Tex.Cr.R. 584, 90 S.W.2d 832; and Roach v. State, 138 Tex.Cr.R. 382, 136 S.W.2d 614.

In view of another trial, we observe that the originals of the handwriting specimens should be offered in evidence or'an explanation made for their nonpro-duction.

It is not sufficient to say .that the originals were in the files of the Department of Public Safety iri Austin. This would show their availability rather than théir unavailability. The appellant timely objécted’tó the introduction of the carbon copies on the grounds that they were not the best evidence and that there had been no showing of any effort made to produce the originals. The objection should have been sustained!

For the errors pointed out, the judgment of the trial court is reversed and the cause remanded.  