
    MILLS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 20, 1912.)
    Forgery (§ 34) — Evidence—'Variance.
    Defendant was indicted for forging a check payable to O., “or bearer,” in the amount of “Seven fifte Dollars.” The check offered in evidence was not payable to bearer, but directed the bank to pay C. “seven and 50/100 Dollars,” adding the letters “C. N. B.,” not appearing on the copy set out in the indictment. Held, that the two instruments were not the same, and that there was a fatal variance.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. § 34.]
    Appeal from District Court, Grayson County; J. M. Pearson, Judge.
    Dude Mills was convicted of forgery, and he appeals.
    Reversed and remanded.
    C. W. Massie and H. D. Cumby, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This conviction was for forging the following instrument:

Sherman, Texas, Nov. 15, 1909. The Commercial National Bank of Sherman, Texas.
Pay to W. C. Clark or bearer $7.50 Seven fifte.Dollars.
T. R. Booe.

The instrument introduced in evidence is as follows:

Sherman, Texas, Nov. 15, 1909.
The Commercial National Bank of Sherman, Texas.
Pay to W. C. Clark seven and 50/100 Dollars ($7.50) C. N. B. T. R. Booe.

An inspection of these two instruments shows they are not the same in words and figures. The instrument declared on in the indictment says: “Pay to W. C. Clark or bearer $7.50” — with the words: “Seven fifte Dollars. T. R. Booe.” The instrument introduced in evidence contains this language: “Pay to W. C. Clark seven and 50/ioo Dollars ($7.50) C. N. B.” Indorsed on back: “W. C. Clark.” This constitutes such a variance under the law of forgery that this conviction cannot be sustained. Looking to the face of the two instruments, it is plainly discernible that they are not the same. The instrument introduced in evidence must correspond with that set out in the indictment. This necessitates a reversal.

There are some other interesting questions suggested. Upon another trial the misconduct of the jury may not arise. The jury discussed the failure of the defendant to testify, and emphasized the fact that he did not write his name so that the jury could inspect it during the trial and compare it with the writing as shown on the instrument. This cannot be considered, in view of the fact that there were no affidavits attached to the motion for new trial, and the only evidence in the record was filed after the conclusion of the term of court. But we call, attention to it, so this may not occur upon another trial.

The evidence is not satisfactory that appellant forged the note. The state witness Booe testified he did not give appellant authority to sign his name to it. The state relied for a conviction practically upon Wilson’s testimony to the effect that he traded for the check from appellant, and in his judgment the name “W. O. Clark,” written by appellant on the check, was the same as the handwriting of the name in the check.

Because of a variance between the instrument declared on and that introduced in evidence, the judgment will be reversed, and the cause remanded.  