
    BOEHN v. STATE.
    (No. 10833.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    Rehearing Granted May 4, 1927.
    On Motion for Rehearing.
    Forgery &wkey;>34(8) — Variance between indictment charging forgery of check on certain bank and proof that checks were drawn on another held fatal.
    Conviction for forging checks ■ will be reversed, where indictment charged forgery of check drawn on certain bank as therein set out, but both checks introduced in evidence were drawn on another bank.
    Appeal from District Court, Jefferson County; J. D. Campbell,-Judge.
    Charles E. Boehn was convicted of forgery, ' and he appeals.
    Reversed and remanded.
    O’Eiel & Reagan, of Beaumont, for appellant.
    ■Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMO'RE, J.

Conviction for forgery; punishment, seven years in the penitentiary.

The record is before us without any bills of exception. We have carefully reviewed the testimony. Appellant had been working for the prosecuting witness whose name was forged to a check, which, according to the testimony, was presented by appellant to the banker and by him refused payment, and later the check was presented by appellant at a store, and, following this presentation, the arrest of appellant resulted; We have no doubt of the sufficiency of the testimony .to justify the jury in concluding that appellant was the party guilty of making the forged instrument.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant in his motion calls our attention to a fact that escaped our 'observation when we wrote originally in this case. The state introduced three witnesses and two checks. The indictment charged appellant with passing a forged check of the tenor following:

“No. 12138.
. , “Beaumont, Texas, 7 — 26, 1926.
“The American, -National Bank (88-27) of Beaumont: Pay to cash or bearer, $29.00, twenty-nine no/100. dollars.
“Counter Check , . 11 - W. A. George.”

The witnesses introduced by the state refer to two checks, but make no identification of them by such specific description as enables us to know which one of the checks introduced in evidence is the check spoken of by the witness at this, that, or any other time. Neither of the checks introduced in evidence corresponds with the check described in the indictment. Both of the checks introduced in evidence appear to be drawn on the Texas National Bank of Beaumont. One of them appears to be numbered 12138, and to be for $29, as is the check set out in the indictment, but the check pleaded in the indictment was drawn on the American National Bank, and the check introduced in evidence appears to have been drawn on the Texas National Bank. This is a fatal variance.

For the failure of the correspondence between the proof and the allegation, the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded. 
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