
    No. 362
    STATE v. HEARNE
    No. 19667.
    Supreme Court
    Motion for leave to file.
    Dock. Mar. 5, 1926.
    FORGERY — Is it fatal variance where the indictment charges the forgery of a check and the proof offered shows the check on its face to be genuine and the endorsement on the back a forgery, to warrant an instructed verdict of not guilty?
    Attorneys — Charles S. Bell, Pros. Atty., and Edward Strasser, Asst. Pros. Atty., for State; J. C. Thompson, for Hearne; all of Cincinnati.
   Edward Hearne was indicted by the Hamilton County Grand Jury for forgery, the indictment charging “forging of an endorsement of a check,” which indictment was quashed on the ground that it did not charge a crime.

The second indictment read in part as follows:

(First- Count)
“Unlawfully did falsely make, forge and counterfeit a certain check.”
(Second Count)
“Unlawfully did utter and publish as true and genuine, a certain false, forged and counterfeited check.”

The evidence disclosed that Hearne was an agent of Tyner and Co., working on a commission and that he did not have authority to endorse checks; that he endorsed “Tyner and Company, Edward H. Hearne” on a check of the Company. The check was genuine on its face.

A verdict of not guilty was directed on the ground that there was a variance between the charge in the indictment and the proof offered in support thereof.

The State, in the Supreme Court, contends:

1. That the indictment specifically informs the defendant of the .nature of the charge against him.

2. That there was not a fatal variance between the indictment and the proof offered in support of it.

_ 3. That the Court erred in directing’ a verdict of not guilty.  