
    COBB v. STATE.
    (No. 10137.)
    (Court of Criminal Appeals of Texas.
    June 2, 1926.
    Rehearing Denied Oct. 26, 1926.)
    1. Forgery <&wkey;34(3) — Difference between forged check and that described in indictment because of indorsement and “forgery” written thereon by bank held not a variance.
    In prosecution for forgery, that forged cheek varied from that described in indictment because there was written on former “forgery,” and it was indorsed by a certain person, did not constitute variance, in view of testimony of party to whom check was given that accused indorsed name on back, and that bank on presentation for. payment wrote “forgery” thereon.
    2. Forgery <&wkey;8.
    That check signed by business organization was countersigned by a fictitious name does not prevent conviction for forgery thereon.
    3. Criminal law &wkey;>1092(14).
    Mere statement of ground of objection in bill of exception is not certificate of judge that facts forming basis of objection are true.
    On Motion for Rehearing.
    4. Criminal law <&wkey;l038(3), 1056(1).
    To present failure to charge on circumstantial evidence, there must be either exception to charge given or special charge presenting such theory.
    5. Forgery &wkey;*34(2).
    On failure of indictment to allege that person signing check for business organization was fictitious person, proof that there was no such person constituted no variance.
    6. Forgery <&wkey;8.
    Evidence that accused passed check, and indorsed thereon name of payee appearing on face of check, a fictitious person, held to support conviction for forgery.
    Commissioners’ Decision.
    .Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Leonard Cobb was convicted of forgery, and he appeals.
    Affirmed.
    
      A. L. Shaw, of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   _ BERRY, J.

The offense is forgery, and the punishment is two years in the penitentiary.

The .testimony is entirely sufficient, and seems to be without dispute to the effect that the appellant forged the following instrument in writing:

“Liberty Café, the Place of Quality. No. 3396. Beaumont, Texas, 1/3, 1925. Pay to H. C. Taylor, or order, $42.50, forty two 50/xx dollars. Liberty Café, By Geo. Angelo. To the Texas National Bank, Beaumont, Tex.”

Indorsed on back of instrument in writing:

“H. C. Taylor.”

By his first complaint appellant alleges that the court erred in refusing -to instruct a'verdict of not guilty. The court ruled correctly in this matter. As above stated, the evidence' not only shows the guilt of appellant, but it shows it without dispute in our judgment.

By various complaints appellant contends that there is a variance between the allegations in the indictment and the proof offered on the trial. The record discloses that the check offered in evidence was identical with the one described in the indictment, save that it shows that it had been indorsed by H. C. Taylor, and had written across it the word “forgery.” The party to whom the check was given testified that before he took the cheek he saw the appellant indorse the back of it with the name of H. C. Taylor, and afterwards the bank to whom it was presented for payment wrote across- the face of it the word “forgery.” These facts were insufficient to show a variance. Mr. Branch correctly states the rule on page 860 of his P. O. as follows:

“When a variance is claimed it should be remembered that the state is not required to allege or prove that the instrument in writing alleged to be forged was burdened or ornamented with stamps, monograms, memorandums, in-dorsements, or writings, which are not a part of the alleged forgery relied on or which were placed on such instrument subsequent to the alleged forgery. Proof that the instrument alleged to be forged had on it those things or added matters which were unnecessary to set out in the indictment will not cause a variance between the allegation and the proof. Labbaite v. State, 6 Tex. App. 262; Hennessey v. State, 23 Tex. App. 354, 5 S. W. 215; Burks v. State, 24 Tex. App. 326, 6 S. W. 300; De Alberts v. State, 34 Tex. Cr. R. 510, 31 S. W. 391; King v. State (Tex. Cr. App.) 38 S. W. 199; Leslie v. State (Tex. Cr. App.) 47 S. W. 368; * * * Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171.”

Appellant also contends that, as the check was not purported to be, signed by the person who was authorized to draw funds .belonging to the Liberty Café, it was a nullity, and that forgery could not be predicated upon it. Article 929, Branch’s P. C., provides that the term “another,” as used in the forgery statutes, applies to any other person except the person engaged in the forgery. The check purported to be signed by the Liberty Café, and the fact that the name signed to it was fictitious in no wise inured to the benefit of the appellant. On the contrary, under the terms of the statute itself, this was sufficient on which to predicate an action for forgery.

Objection is made to the court’s action in permitting the county attorney to reproduce the testimony of a witness who had moved out of the state. The court’s action in this matter was in conformity with the precedents. Besides, the bill itself states no facts which would show that said testimony was not admissible. It has been repeatedly held that a mere statement of the ground of objection in a bill of exception is not a certificate of the judge that the facts which formed the basis of the objection are true. Smith v. State, 4 Tex. App. 630; Robbins v. State, 100 Tex. Cr. R. 592, 272 S. W. 176. See section 209, Branch’s Ann. P. C., for full collation of authorities on this question.

There being no error shown in the record, the judgment is affirmed.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE,’ J.

The case was one of circumstantial evidence, but no exception to the failure of the court to submit that theory appears in the record. In order to avail one of the failure to charge on circumstantial evidence, there must be either an exception to the charge of the court or a special charge presenting such theory. Charles v. State, 85 Tex. Cr. R. 534, 213 S. W. 266; Givens v. State, 98 Tex. Cr. R. 651, 267 S. W. 725.

The alleged forged instrument was in the form of an ordinary cheek calling for the payment of money. The Liberty Café in Beaumont, Tex., had a check book specially prepared for their use, in which forms appeared the name of the drawer thereof as the “Liberty Café, by-,” it being requisite, to complete the check and make it call for the payment of money, that the blank be filled out by some person. In the alleged forged cheek as set out in the indictment the blank appeared to have been filled out by George Angelo. It was not alleged in the indictment that George Angelo was a fictitious person. Proof of the fact that there was no person of that name constituted no variance. Davis v. State, 34 Tex. Cr. R. 117, 29 S. W. 478; Johnson v. State, 35 Tex. Cr. R. 272, 33 S. W. 231; Davis v. State, 37 Tex. Cr. R. 218, 39 S. W. 296; Spicer v. State, 52 Tex. Cr. R. 178, 105 S. W. 813.

There would seem no possibility of sound contention that the alleged forged instrument copied in the indictment would not, if true, have created a pecuniary obligation. It is not alleged in the indictment that tbe check would have been the obligation of the Liberty Café, and it was not necessary for the proof supporting the state’s contention to show that the check was made by one with authority to sign the name of the Liberty Café to such instrument. The instrument set out created no legal obligation against the Liberty Café, because not signed by any one connected with said café or authorized to fill out the blank upon said check. If George Angelo had authority to fill out such blank, the instrument set out would have created an obligation against said café. The manifest purpose of the execution of the check as set out in the indictment was to create the impression that George Angelo had the right to bind the Liberty Café in the execution of such check.

The check was passed by appellant, who indorsed thereon the name of the payee appearing on the face of the check. The indorsement was no part of the instrument. Every element of the offense of forgery seems to appear in the record.

We have examined the able motion for rehearing filed by appellant’s counsel with care, but are unable to agree with any of the contentions, and the motion will be overruled. 
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