
    GAMMILL v. STATE.
    No. 18800.
    Court of Criminal Appeals of Texas
    Feb. 24, 1937.
    E. C. Gammill, pro se, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The .conviction is for passing a forged instrument; penalty assessed at confinement in the penitentiary for five years.

The count of the indictment upon which the verdict is based alleges that the appellant “did then and there knowingly * * * pass as true to Kathleen Coe a forged instrument in writing of the tenor following:

The effect of the above allegation is to charge that the name of “J- W. Shaw” was the forgery. If it was the purpose of the State to charge that the indorsement was the forgery, then it was necessary that the indictment contain an averment to that effect. Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.(2d) 316; Landrum v. State, 118 Tex.Cr.R. 132, 42 S.W.(2d) 1026.

The evidence in the present instance shows that the appellant forged the Dame of E. M. Wilson on the back of the check, but this was not the forgery which the State charged in the indictment. There is nothing in the record to show that the handwriting on the check was not that of J. W. Shaw. Neither is there £.ny evidence to the effect that Shaw was a fictitious person.

The State’s Attorney before this court concedes that the facts are insufficient to support the averments in the indictment, and in this view we are constrained to concur.

The judgment is reversed and the cause remanded.  