
    GARCIA v. STATE.
    (No. 8532.)
    (Court of Criminal Appeals of Texas
    Dec. 10, 1924.)
    1. Criminal law <8=»l 173(3) — Failure to charge on law of circumstantial evidence with reference to count on which conviction not based held not harmful error.
    Where conviction was on count charging an attempt to pass a forged instrument under which evidence was not circumstantial, failure to charge on law of circumstantial evidence with reference to count charging forgery was not harmful error.
    2. Criminal law <@=>743 — Credibility of defendant’s statement in prosecution for forgery held for jury.
    In prosecution for forgery and attempting to pass forged instrument, defendant’s interest in transaction was such as rendered credibility of his statement that he liad found check and had no guilty knowledge of its forgery a matter for jury, in view of Yernon’s Ann. Code Cr. Proc. 1916, art. 786.
    3. Forgery <®=>44(¡/2)— Conviction for attempting to pass a forged instrument sustained.
    Evidence held to sustain conviction for attempting to pass forged instrument.
    Appeal from' Criminal District Court, Nue-ces County; A. W. Cunningham, Judge.
    Gregorio Garcia was convieted of forgery, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Forgery is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

From the indictment we copy the following:

“* ■* * Which said false instrument in writing so made was then and there of the ten- or following.
“ ‘Robstown, Texas, So 28 1923 No. - The Guaranty State Bank of Robstown, Texas, 88-1590 Pay to Rafael Benabides or Bearer $18.14/100 eightn & 14/100 dollars
“ ‘C E lchwarz
“ ‘J or P’
“The word ‘eightn’ as used in said forged instrument being intended for ‘eighteen’; the signature ‘C E lchwarz’ to said forged instrument being intended for the signature ‘C. E. Schwarz.’ ”

The check introduced in evidence corresponds in all particulars with the above, except that it was payable to Juan Benabides, and contained in the left-hand corner the letters “F or P,” instead of the letters “J or P.’’ These letters appear from the evidence to have been a memorandum, and not part of the check, and the innuendo averments are sustained by the evidence. Appellant presented the check at a store, to be used in payment of some purchases. It was taken by the clerk to the bank upon which it was drawn, and payment was refused upon the ground that the signature was not that of G. E. Schwarz. Schwarz had previously given a check to the appellant which was identical with the one in question, save that Gregorio Garcia was named as the payee. From the appellant’s testimony and that of his witnesses, the theory was developed that he had found the check and had presented it to ascertain whether it was good; that he could not have committed the forgery for the reason that he could neither read nor write either Spanish or English.

There are several counts in the indictments; one of them charging forgery. The conviction is upon the second count, charging an attempt to pass a forged instrument, knowing it to be forged. The evidence upon this count was not circumstantial, nor is it so contended. The verdict not being upon the count charging forgery, there was no harmful error in failing to charge on the law of circumstantial evidence with reference to that count. Appellant’s testimony that he had found the check and had no guilty knowledge of its forgery raised an issue of fact, but cannot be regarded as conclusive against the state. His interest in the transaction was such as rendered the credibility of his statement a matter for solution by the jury. See Ruling Case Law, vol. 28, p. 660, § 245; also, p. 6l5, § 204. See, also, article 786, C. C. P.; Vernon’s Tex. Crim. Stat. vol. 2, pp. 687 and 688; Costillo v. State (No. 8448) 266 S. W. 158, not yet [officially] reported.

We feel unwarranted in concluding that the verdict of the jury is not supported by the evidence. The judgment is affirmed. 
      ©=oFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     