
    COFER v. STATE.
    (No. 10807.)
    Court of Criminal Appeals of Texas.
    May 4, 1927.
    Rehearing Denied June 8, 1927.
    1. Forgery &wkey;>34(3) — That indictment did not set out indorsement appearing on forged instrument as introduced in evidence did not constitute “variance.”
    In prosecution for passing forged instrument, that indorsement on such instrument was not set out in indictment, but appeared on instrument as introduced in evidence, did not constitute “variance,” since indorsement is not part of instrument.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Variance.]
    On Motion for Rehearing.
    2. Forgery <&wkey;44(l) — In prosecution for passing forged instrument, evidence held to support finding that defendant knew instrument he passed was forged.
    In prosecution for passing forged instrument, evidence held, sufficient to support finding that defendant knew instrument was forged, where he possessed forged cheek payable to fictitious person, passed it, and received benefits therefrom.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Mon Cofer was convicted of knowingly passing as true a forged instrument, and be appeals.
    Affirmed.
    Warlick & Poteet, of Vernon, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State,.
   MORROW, P. J.

The offense is forgery; punishment fixed at confinement in the penitentiary for a period of three years.

The alleged forged instrument reads thus:

“Bank Ex. $25.00. Vernon, Texas, April 9, 1926. Pay to order of T. H. Martin, $25.00. W. R. Antle — Cotton—Vernon, $25.00 and 00 ets. Value received and charge to account of W. R. Antle & Co., by W. R. Antle. To T. H. Martin for cotton.”

The evidence shows that the appellant presented the document to J. G-. Robertson, who was in charge of Levine Bros.’ store. Robertson O. K.’d the check and the cashier gave the appellant $25 on it. On the back of the cheek, as introduced in evidence, appears the indorsement:

“Pay to the order of the Farmers’ State Bank, Vernon, Texas. Levine Bros. The People’s Store.”

We gather from the motion for new trial that the appellant’s contention is that because the indorsement not being set out in the indictment, the fact that it appears on the instrument as introduced in evidence constitutes a variance. The indorsement we understand is not a part of the instrument. See Cobb v. State, 105 Tex. Cr. 81, 286 S. W. 1086; Branch’s Ann. Tex. P. C. p. 860; Hennessy v. State, 23 Tex. App. 354, 5 S. W. 215; Davis v. State, 70 Tex. Cr. 253, 156 S. W. 1171. See, also, 2 Vernon’s Tex. P. C. 1925, art. 979, notes 16, 17, and 18; Robinson v. State, 35 Tex. Cr. 54, 43 S. W. 526, 60 Am. St. Rep. 20; Beer v. State, 42 Tex. Cr. 505, 60 S. W. 962, 96 Am. St. Rep. 810; Cox v. State, 92 Tex. Cr. 497, 244 S. W. 605.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Our attention is called to the fact that we inadvertently stated in our original opinion that appellant was convicted of forgery when the conviction, in fact, was for knowingly passing as true a forged instrument. The original opinion has been corrected, in this regard.

It is insisted that the evidence is insufficient to support the finding that appellant knew the instrument he passed was forged. He was in possession of and passed a check which was unquestionably a forgery. When the party to whom he passed it made a suggestion that appellant must have gotten it in a poker game, he adopted the suggestion, and said that was where he received it. The check was drawn in favor of T. H. Martin. The state took the position that the payee in the cheek was a fictitious person. Some eight witnesses testified thgt they knew of no such person, although some of them had been for some time in business which brought them in contact with the public generally. Appellant did not testify. He offered one witness only, who on direct examination testified that he knew a T. H. Martin, but on cross-examination became uncertain as to the initials. The evidence justified the jury in concluding that Martin was a fictitious person. Appellant being found in possession of a forged check payable to such a party and having passed it and received the benefits therefrom, the jury did no violence to the facts in the inference that he knew the check was forged.

The motion for rehearing is overruled. 
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