
    MARTIN v. STATE.
    (No. 5297.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.
    On Motion for Rehearing, March 19, 1919.)
    1. Criminal Law <&wkey;1097(l) — Appeal/—Original Statement op Pacts — Record.
    Where the original statement of facts does not accompany the record, as required by Code Cr. Proc. 1911, art. 844, the Assistant Attorney General’s motion to disregard it must be sustained.
    ,2. Forgery <&wkey;29(3) — Indictment—Explanatory Averments.
    An indictment for forgery setting out- a written instrument which on its face would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever, requires no explanatory averments.
    3. Forgery <&wkey;29(3) — Indictment—Explanatory Averments.
    Forged instrument, reading, “Fort Worth, Texas, May 4, 1918. Received of the Fort Worth National Bank $100.00 for account of I N Bank, Groveton,” with signature, held within Pen. Code 1911, art. 924, defining “forgery,” so that indictment for forgery setting out such instrument required no explanatory aver-ments.
    On Motion for Rehearing.
    4.-Indictment and Information &wkey;>137(6)— 1 Motion to Quash.
    Failure of indictment for forgery to embrace averments explaining the words, “I N Bank, Groveton,” the forged instrument being an acknowledgment of the receipt of $100 for the account of I N Bank, held not to render the indictment subject to quashal on motion.
    5. Forgery <&wkey;34(2) — Evidence—Variance.
    If, in a prosecution for forgery,' there is an effort to show the words of the instrument declared on mean anything other than' what they naturally import, the variance is available on objection to the evidence.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Charley Martin was convicted of forgery, and he appeals.
    Affirmed.
    Roberson & Oogdell, of 'Ft. Worth, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for forgery.

The original statement of facts does not accompany the record as required by article 844, C. C. P., and the motion of the Assistant Attorney General that it be disregarded must be sustained. Morris v. State, 63 Tex. Cr. R. 375, 140 S. W. 775; Salinas v. State, 142 S. W. 908.

The instrument declared on is as follows:

“Fort Worth, Texas, May 4, 1918. Received of the Fort Worth National Bank $100.00 for account of I N Bank, Groveton.
“[Signed] R. B. Buffington.”

The overruling of the motion to quash the indictment and the motion in arrest of judgment is complained of upon the ground that the instrument is not one that may be declared on in a forgery indictment without explanatory averments. It is the general rule that an indictment for forgery which sets out a written instrument which on its face would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever, requires no explanatory averments. Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; Branch’s Ann. P. C. p. 851, § 1398. There are decisions somewhat conflicting touching the question as to whether a receipt for money comes within this class of instruments or not. See-Fonville v. State, 17 Tex. App. 381; Black v. State, 42 Tex. Cr. R. 585, 61 S. W. 478. The first of these decisions appears to affirm and the latter deny that a receipt for money is an instrument that may be declared on in a forgery indictment without explanatory averments. The instrument in question appears to be more than a receipt for money. Its purport is to show that Buffington had received $100 from the Ft. Worth National Bank, and that he had received it for account of the bank at Groveton. We are unable to reach the conclusion that the instrument was not such as would come within the terms of the statute (article 924, P. C.). It imports an obligation on the part of Buffington to the I N Bank at Groveton for the $100 received for its account, and would form the basis of a civil suit by that bank against him. In a suit by Buffington against the I N Bank for $100 it would defeat his claim. So the $100 paid, as shown by the receipt, would have diminished the obligation of the Ft. Worth National Bank to the bank at Groveton. Likewise it would have shown a transfer of money from the Ft. Worth National Bank to the bank at Groveton, thus creating or increasing the obligation of the latter.

Judge Hurt, in reasoning on the subject in Fonville v. State, 17 Tex. App. 382, says:

“Let us suppose that Hamby has ascertained that appellant had only paid Middleton $1.35 instead of the $1.75, and had instituted suit for the 40 cents, will it be contended that if Middleton’s receipt was absolutely true, Hamby’s suit would not be defeated? Appellant only having paid Middleton $1.35, and receiving $1,-75 from Hamby, he was by this transaction placed, in conscience and law, under a pecuniary obligation to Hamby, to the amount of forty cents. And for this amount, though small indeed, Hamby had a right of action against appellant. Now suppose suit instituted; upon the trial, if indeed he had paid Middleton, as is stated in the receipt, $1.76, certainly the pecuniary obligation of him to Ham-by would have been defeated.”

Many courts and text-writers designate a receipt for money as one of the instruments which may be subject of indictment for forgery without averments explaining it. Wharton’s Crim. Law, § 887; People v. Munroe, 100 Cal. 664, 36 Pac. 326, 24 L. R. A. p. 33, 38 Am. St. Rep. 323, and note; Cyc. vol. 19, p. 1384.

Binding no errors, the judgment is affirmed.

On Motion for Rehearing.

The failure to embrace in the indictment averments explaining the words “I N Bank of Groveton” would not render the indictment subject to quashal on motion. If, on a trial of the case, there was an effort to show that the words meant anything other than that which they imported, viz. that the name of the hank intended was the I N Bank of Groveton, a variance would have been disclosed between the allegation and proof available on objection to the evidence. Beasley v. State, 39 Tex. Cr. R. 688, 47 S. W. 991.

The motion for rehearing is overruled. 
      <&^>For oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     