
    GUMPERT v. STATE.
    (No. 6162.)
    (Court of Criminal Appeals of Texas.
    March 16, 1921.)
    1. Criminal law <&wkey;>829(!8) — Refusal of instruction on reasonable doubt covered by main charge not error.
    In a prosecution for forgery and for passing a forged instrument, refusal of a special instruction that the jury should acquit unless they believed beyond a reasonable doubt that defendant intended to injure the party whose name was signed to the instrument held not error where the requested charge was not materially different from that given by the court in its main charge.
    2. Forgery <&wkey;29(5) — Indictment need not state name of person to be defrauded..
    An averment in an indictment for forgery and for passing a forged instrument of the name of the person to be defrauded was unnecessary.
    3. Criminal law <&wkey;>829(3), 1186(4) — Refusal of instruction as to defendant’s knowledge that check passed was forged held not reversible error.
    In a prosecution for forgery, the refusal of a requested instruction that, if the defendant did not know the checks received from another and which he passed were forged, he would not be guilty, held not reversible error, where the proposition in a negative way was in substance embraced in the main charge, and, where the refusal was not calculated to injure the defendant, reversal would not be authorized under Code Or. Proe. 1911, art. 743.
    4. Forgery <&wkey;28( I) — Indictment held not ambiguous as alleging check drawn on two banks.
    In a prosecution for passing a forged check, an indictment setting out the instrument held not ambiguous as showing the check to have been drawn on two banks.
    5. Forgery &wkey;>29(2) — Indictment held not defective for failure to show that party named as maker of check would be injured.
    An indictment for forgery of a check or passing a forged instrument held not ambiguous for failure to show that the check was such an instrument as would diminish the obligation or transfer the property to the party whose name appeared as signer.
    6. Indictment and information &wkey;>l29(3) — Indictment charging forgery and uttering forged instrument in separate counts held not duplicitous.
    The fact that forgery and uttering a forged instrument are charged in separate counts in the same indictment does not render the indictment duplicitous.
    Appeal fronu District Court, McLennan County; -Richard I. Munroe, Judge.
    L. W. Gumpert was convicted of forgery and for passing a forged instrument, and he appeals.
    Affirmed.
    James E. Xeager, of Waco, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was indicted for forgery and for passing a forged instrument. The instrument described is a check for $18.65, purporting to be the act of C. A. Morris.

The count on passing charges that the instrument was passed to injure and defraud C. A. Morris. That count alone was submitted. The complaint is made of the failure to give a special charge to acquit unless they believed beyond a reasonable doubt that the intent was to injure C. A. Morris. The requested charge was not materially different from that given by the court in its main charge, wherein the jury was instructed that:

“If you believe from the evidence beyond a reasonable doubt that the instrument set out in the indictment was forged, and if you further believe from the evidence beyond a reasonable doubt that the defendant, in the county of Mc-Lennan and state of Texas, on or about the 6th day of August, 1920, as alleged, knowing the same to be a forged instrument, did knowingly pass to John Anderson with the intent to defraud C. A. Morris, as true, the said alleged forged instrument, then you will find him guilty. * * * ”

No reason is given in the bill of exceptions complaining of the refusal of the court to give the special charge, nor do we discern from the record that, in view of the instruction embodied in the court’s charge, the special instruction was necessary to protect the rights of the appellant.

Averment in the indictment of the name of the person to be defrauded was unnecessary. Assuming that the state was bound to prove the intent to defraud him, the evidence is quite sufficient to discharge this burden, and it occurs to us that, as the record is presented, no error is shown in the refusal of the court to repeat in a special charge that which is substantially given in the main charge.

Appellant accounted for his possession of the cheek by the statement that he met a boy who had four checks in his possession, all purporting to bear the signature of C. A. Morris; that he did not know and did not ask the boy his name, but that the boy had told him he would give him half of the amount of the checks to cash them; and that he undertook to do so. The proof showed, with reference to the check described in the indictment, that he did pass it, and that he indorsed a forged or fictitious name to facilitate its passage, and that in passing other cheeks given him by the boy, he indorsed on each of them a different name; not his own.

The appellant also requested the court to instruct the jury that, if he did not know the checks were forged, he would not be guilty. This proposition, in a negative way, was, in substance, 'embraced in the main charge. It would not have been inappropriate to have given the special charge as an affirmative presentation of appellant’s theory. However, its refusal, under the evidence, was not calculated to injure the appellant, and under article 743, Code of Criminal Procedure, would not be an error authorizing a refusal. Eggleston v. State, 59 Tex. Cr. R. 543, 128 S. W. 1105; Vernon’s Crim. Statutes of Texas, vol. 2, p. 506, notes 16 and 19.

Appellant, by motion to quash and motion in arrest of judgment, attacked the indictment; the substance of both being a general exception, together with the claim that the indictment is duplicitous in charging two offenses in one indictment without showing the relation between them; that it is ambiguous in showing the instrument to have been a check drawn on two banks; that it failed to show that it was such an instrument as would increase or diminish the obligation or transfer any property to C. A. Morris. The instrument we copy as follows:

“Guaranty Fund Bank. McGregor, Texas, Aug. 6, 1920. No. -. First State Bank 88 449: Pay to Jeff Brady, or bearer, $18.65, eighteen and 65/ioo dollars. O. A. Morris.”

The name of Jeff Brady appears on the back of said instrument.

The instrument, being a check ordinarily used in commercial transactions, would have had the effect to create, increase, or diminish, discharge, or defeat a pecuniary obligation. Cyc. of Law & Procedure, vol. 19, p. 1384; Branch’s Ann. Tex. Penal Code, art. 924.

The fact that forgery and uttering a forged instrument are charged in separate counts in the same indictment does not render it duplicitous. Chester v. State, 23 Tex. App. 577, 5 S. W. 125; Barnwell v. State, 1 Tex. App. 745. An inspection of the instrument sufficiently disposes of the claim that it was ambiguous in the particulars mentioned.

We find nothing presented for review which woqld authorize us to reverse the case, and it is therefore affirmed. 
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