
    HURD v. STATE.
    (No. 8614.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    Rehearing Denied March 11, 1925.)
    1.Criminal law <@=>814(17)— Case not one of circumstantial evidence in view of admission of defendant.
    Case held not one of circumstantial evidence, where witness testified to admission by defendant that he signed alleged forged instrument, and that he claimed name signed to instrument was his.
    2. Forgery <@=>34(8) — Proof as to name forged held variant from indictment purporting to set out instrument according to tenor.
    Proof showing instrument signed by Oldis Roods held variant from indictment undertaking to set out instrument according to its ten- or, which alleged forged name to be Oddis Rhoods, in vieut of rule that there must be exact correspondence between proof and allegation purporting to set out instrument according to its tenor.
    On Motion for Rehearing.
    3. Criminal law <@=>1110(3) — Correction of stenographic error in statement of facts not permitted.
    Correction of stenographic error in transcribing statement of facts will not be permitted on appeal, since such statement represents agreement of both parties, which has received sanction of trial court.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    George Hurd was convicted of forgery, and he appeals.
    Reversed and remanded.
    Bumpass & Wade, of Terrell, for appellant.
    H. R. Young, Co. Atty., of Kaufman, Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Apstin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of forgery, pnd his punishment fixed at two years in the penitentiary.

We do not think this case one of circumstantial evidence. Mr. Yates swore that appellant admitted to him that he signed the alleged forged check, and that he claimed his name was Odis Rhodes. We think the complaint that the court did not charge on alibi is not .sustained by the record. That theory was submitted in the charge.

Appellant excepted to the court’s charge because it did not instruct the jury to return a verdict of not guilty because of an alleged variance between the check offered in evidence and that set out in the indictment. The indictment alleged the forging of a check “of the tenor following: The American National Bank of Terrell: ‘Pay to Perkins Bros. Co. or bearer $20.00 twenty & no/100 dollars. Oddis Rhoods, Terrell R. 8/ ” Said instrument was dated at “Terrell, Texas, 3/30, 1923.” An innuendo averment in the indictment states that by the name and words “Oddis Rhoods” was meant and intended the name “Otis Rhodes.”

The statement of facts does not purport to set out by quotation the alleged forged instrument, but states its contents. We quote from the statement of facts as follows:

“The state introduced in evidence check on the American National Bank of Terrell, payable to Perkins Bros. Go., or bearer, in sum of $20.00, signed by Oldis Roods, Terrell, R. 8.”

We are constrained to hold tliat there was a variance between the instrument copied in the indictment and that offered in evidence. It is held that when the indictment undertakes to set out the instrument according to its tenori there must be an exact correspondence between the proof and allegation. Fischl v. State, 54 Tex. Cr. R. 55, 111 S. W. 410; Feeney v. State, 58 Tex. Cr. R. 152, 124 S. W. 944; Simmons v. State, 61 Tex. Cr. R. 7, 133 S. W. 687. The party whose name was alleged to have been forged appears in the statement of facts as “Odis Rhodes.” His name, as alleged in the indictment, occurring in the alleged forge'd instrument, appears to be “Oddis Rhoods.” Said party’s name, as it appears in the instrument offered in evidence, is “Oldis Roods.” We do not think this proof'meets the test of the law requiring correspondence between the instrument set out according to its tenor, and the proof made of same.

For the error of the refusal of the special charge, the judgment will be reversed and the cause remanded.

On Motion for Rehearing.

The state moves for a rehearing in this case, and seeks as part of its motion a correction of the statement of facts, and accompanies the motion with the original check introduced in evidence, and also with proof of the fact that it was incorrectly transcribed into said statement of facts by the court stenographer.

There seems an unbroken line of authorities in this state declining to permit the correction of statements of fact. The reason for this is clear.' The statement fit facts represents the agreement of both parties to a controversy in the court below, and, as agreed to by them, has received the solemn sanction of the trial court. We regret that we cannot grant this motion.. The authorities are , discussed and cited to some extent in McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394.

The motion for rehearing by the state will be overruled. 
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