
    BURKS v. STATE.
    (No. 6007.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1920.)
    
    1. Forgery <&wkey;34(8) — Proof instrument was drawn on certain bank a variance from indictment averring another as payee.
    Proof that the forged instrument which defendant is charged with passing was drawn on the “First National Bank of Corsicana” constituted a fatal variance from the indictment, averring that it was intended for the “First National Bank of Waco.”
    2. Forgery <&wkey;34(8) — Evidence as to party to whom defendant passed forged instrument held a variance.
    Evidence showing that the forged instrument defendant is charged with passing was passed to “I. W-. Kestner” constituted a clear variance from the indictment, alleging that defendant passed the instrument to “I. W. Kier-sky.”
    Appeal from -District Court, McLennan County; Richard I. Munroe, Judge.
    Willie Burks was convicted of passing a forged instrument, and he appeals.
    Judgment reversed, and cause remanded.
    Taylor & Forrester, of Waco, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State;
   DAVIDSON, P. J.

The indictment contains two counts, one for forgery and the other for passing a forged instrument. Both counts were submitted to the jury, and they convicted under the second count, for passing the instrument.

It is contended the evidence does not show that appellant passed, but only attempted to pass, the instrument. Without discussing that question, we pass to another question. The instrument declared on is as follows.

Waco
AQorsieaaar Texas,' April 8 19120. No.-.
“The First National Bank 88-106 of Corsicana
“Pay to Willie Burks or bearer $9.20 Nine dollars twinty cts. Dollars
“on T. B. Cox.”

This instrument shows to have been dated at Waco, on the 8th of April, 1920, and was drawn on the First National Bank of Corsicana, in favor of Willie Burks or bearer, 89.20, signed, “on T. B. Cox.” The contention is made, and with some degree of force, that “on T. B. Cox” is not and should not be held to be the signature of T. B. Cox, but a request to pay Willie Burks this amount to be charged against T. B. Cox. If this contention be not correct, the instrument was directed to the First National Bank of Corsicana and not to the First National Bank of Waco. There is no ambiguity about tbe specifications of the bank. It is directed to tbe First National Bank of Corsicana. Tbe explanatory or inr nuendo averments that it was intended for tbe First National Bank of Waco can not change tbe obligation from one bank to tbe other. Tbe instrument on its face shows it was drawn on tbe First National Bank of Corsicana and not on a bank at Waco, twó entirely different banks, and if it could be a binding obligation it was intended to operate against tbe Corsicana bank and not tbe Waco bank. To sustain tbe indictment would be changing the entire face of tbe instrument or contract of tbe responsibility. For this reason tbe judgment must be reversed. Tbe motion to quash should have been sustained. Tbe check was not drawn upon the Waco bank, but upon tbe Corsicana bank.

There is another matter with reference to the question of variance. Tbe indictment alleges that appellant passed tbe instrument to one I. W. Kiersky. Tbe evidence shows that it was passed to I. W. Kestner. This is a clear variance between tbe allegation and tbe evidence introduced.

Tbe judgment will be reversed, and tbe cause remanded. 
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