
    LEE v. STATE.
    (No. 10879.)
    Court of Criminal Appeals of Texas.
    May 4, 1927.
    Forgery <&wkey;44 (3) — -Evidence held to warrant conviction Of passing forged instrument, though' defendant voluntarily returned proceeds.
    Evidence held to sustain conviction of passing forged instrument, though, after the person to whom the instrument was given in return for a ehe.ek discovered the forgery, defendant voluntarily returned the check.
    Appeal from District. Court, Guadalupe County; Lester Holt, Judge.
    ■Cleveland Lee was convicted of passing a forged -instrument, and he appeals.
    Affirmed.
    Dibrell & Mosheim, of Seguin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is passing a forged instrument; punishment fixed at confinement in the penitentiary for a period of two years.

In the indictment the alleged forged instrument is set out as follows:

“October 1, 1926.
“Mr. Eisher. Let Cleveland Lee have $5.00. Martin Hoffmann.”

The witness Eischer testified that the instrument mentioned was presented to him; that upon the faith of it he gave the appellant a check for $5. The alleged forged instrument was introduced in evidence.

Martin Hoffmann testified that he did not sign the instrument, nor did he authorize the signature of the instrument.

By exception to the charge of the court and by special charges requested, the appellant advanced the proposition that the evidence reflected but an attempt at passing, and that in submitting the issue of passing a forged instrument the trial court was in error. Prom the evidence and the qualification of the bill, it appears that the appellant wrote and delivered to Fischer the order set out in the indictment; that Eischer gave the appellant his cheek for $5, the amount called for by the order; that Eischer afterwards became suspicious and went to a store and telephoned to the maker of the instrument touching its genuineness; that while at the store the appellant came in and heard the telephone conversation and then left under Fischer’s hat the check which he had received. This transaction would not exculpate him. The criminal act, that is, the passing of the forged instrument, had transpired.

There was no error in refusing to give an instructed verdict for the defendant.

Finding no error in the record, the judgment is affirmed.  