
    SLATTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1911.
    On Motion for Rehearing, May 3, 1911.)
    1. Criminal Law (§ 1104) — Record—Statement of Facts.
    Under Acts 31st Leg. (1st Ex. Sess.) c. 39, §§ 5, 6, providing that the statement of facts shall be prepared in duplicate, and that the original shall be sent to the Court of Criminal ¿Appeals, the court cannot consider a statement of facts copied in the record.
    [EJd. Note. — For other cases, see Criminal Law, Dec. Dig. § 1104.]
    2. Criminal Law (§ 1144) — Questions Reviewable — Instructions.
    A charge applicable to any state of facts provable under the indictment will be sustained, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1144.]
    3. Criminal Law (§ 1111) — Bill of Exceptions — Modification.
    One accepting and filing a bill of exceptions as modified by the trial court is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dee. Pig. § 1111.]
    4. Criminal Law (§ 1090) — Bill of Exceptions — Modification—Objections.
    Accused, to obtain a review on appeal of the trial court’s action in modifying or contra-dieting his bill of exceptions, must object to such action at the time and reserve a bill of exceptions, and a failure to do so is equivalent to an acceptance of the bill as altered.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    On Motion for Rehearing.
    5. Forgery (§ 28) — Uttering Forged Instrument — Indictment—Requisites.
    An indictment for uttering a forged note, which alleges that accused fraudulently made a false instrument in writing purporting to be the act of another, which instrument “is in substance as follows,” and which then sets out the instrument in haee verba, sufficiently sets out the alleged false instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 66-76; Dec. Dig. § 28.]
    6. Criminal Law (§ 400) — Evidence—Admissibility.
    Where the note to which signatures were forged was destroyed and only parts thereof containing the signatures were preserved, parol testimony of the contents of the note, with a blank note as the form of the note to which the signatures were forged, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 400.]
    7. Criminal Law (§ 1090) — Rulings on Evidence — Review—Bill of Exceptions.
    The court on appeal can consider only grounds in the motion for new trial based on rulings on evidence, in so far as the same are preserved in bills of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2822; Dec. Dig. § 1090.]
    8. Forgery (§ 48) — Uttering Forged' Instrument — Evidence—Instructions.
    Where on a trial for attempting to pass a forged note the evidence showed that all the namgs, save the name of accused, were for‘geries, and that accused stated to the person to whom he attempted to pass the note that the maker had signed the note while sitting on his horse, a charge that an attempt to pass a forged instrument must be done with intent to injure or defraud was applicable.
    [Ed. Note. — For other cases, see Forgery, Dec. Dig. § 48.]
    Appeal from District Court, Rains County; R. L. Porter, Judge.
    <5. J. Slatter was convicted of attempting to pass a forged instrument, and he appeals.
    Affirmed.
    A. R. Cornelius, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted in the district court of Rains county for attempting to pass a forged instrument; upon a trial he was adjudged guilty, and his punishment assessed at two years confinement in the state penitentiary, from which judgment he predicates this appeal.

1. The Assistant Attorney General has filed a motion to strike out the statement of facts, which is copied in the record. Sections 5 and 6 of chapter 39 of the Acts of the Thirty-First Legislature (1st Ex. Sess.) provide that in felony cases the statement of facts shall be prepared in duplicate, and that the original statement of facts shall be sent to this court on appeal. In a number of eases it has been held that this act must be complied with, and the original statement of facts sent to this court, and this court will not and cannot consider a statement of facts copied in the record. The motion is sustained, and the statement of facts stricken out.

And, in the absence of a statement of facts, if the charge is applicable to any state of facts that might be made by the testimony under the allegations of the indictment, on appeal it will be considered and assumed that the trial court submitted to the jury all the law applicable to the case. Mundine v. State, 50 Tex. Cr. R. 97, 97 S. W. 490.

2. By bills of exception Nos. 1, 2, 3, and 4, appellant complains of the action of the court admitting certain testimony as to the amount of the note alleged to have been forged, and testimony describing said note. Also to fragments of a note introduced in evidence. The court qualifies the bills by stating that this testimony was admitted after witness Ivie had testified that he had destroyed a part of said note, and the pieces introduced in evidence were identified as a portion of the note alleged to have been forged.

When a party accepts and files a bill of exception qualified by the court, he is bound by the qualification.

In order to have revised on appeal the action of the trial court in modifying, changing, or contradicting a defendant’s bill of exception, the defendant must have objected to such action at the time, and have reserved a bill of exceptions to such alteration of his original bill. A failure to do so is tantamount to an acceptance of the bill, and estops defendant from further complaint in the matter. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368. If the note had been destroyed, secondary evidence would be admissible.

Binding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

At a former day of this term the judgment herein was affirmed, as at that time we did not consider the statement of facts. A motion for a rehearing has been filed, wherein, under the certificate of the clerk of the district court and other evidence, we are constrained to believe that the case should be considered on its merits, and we will <Io so.

1. Appellant earnestly insists that the indictment should be quashed, on the ground that the indictment does not pretend to set out the alleged false instrument in writing, and gives no reason for not doing-so. The indictment alleges, “did fraudulently make a certain false instrument in writing, purporting to be the act of another, which said false instrument is in substance as follows,” and then sets out the instrument in hsec verba. This, in our opinion, is a sufficient allegation, and the court did not err in refusing to quash the indictment.

2. In bills of exception Nos. 1, 2, 3, and 4 defendant complains that the state was permitted to prove by oral testimony the amount and contents of the note alleged to be forged, and introduce a blank note as the form of the note to which it was alleged signatures were forged. By the qualifications of the trial judge to these bills, it is shown that the note to which it is alleged signatures had been forged had been destroyed, and only certain parts thereof, containing-the signatures, preserved. In the light of the testimony, and the qualifications of the court, we do not think the court erred in permitting this testimony to be adduced on the trial.

3. These are all the bills of exception in the record, except Nos. 5 and 6, the first of which set out the motion for new trial, and the latter the motion in arrest of judgment. The motion in arrest of judgment was based solely on the insufficiency of the indictment, and on this we have already ruled.

4. The grounds in the motion based on the evidence, in so far as presented in bills of exception Nos. 1, 2, 3, and 4, have been passed on herein, and on any other grounds, there being no bills, we cannot consider same.

5. The special charges requested by defendant were given, and he complains in his motion for a new trial of the court’s charge “(1) that the attempt to pass the forged instrument must be done with intent to injure or defraud; (2) because (it is alleged) the jury is virtually told that defendant is guilty of attempting to pass a forged instrument, regardless of whether or not there was any intent to injure or defraud.” All those whose names were signed to the note, other than defendant, testified they did not sign their names to it, and that their names had been forged. Defendant told the bank that Johnson, whose name was signed to the note, had signed it while sitting on his horse. He undertook to get money on the note at the bank, and we think the court correctly presented the law as applicable to the case.

The motion for rehearing is overruled.  