Both parties file motions for rehearing herein. Being of opinion that of the State should be granted, there is no need to consider the application filed by the appellant.
This case was reversed in our original opinion for a supposed variance between the allegations of the first count in the indictment, *Page 204 and the testimony, but upon mature consideration we are of opinion that our action in so doing was erroneous. There seems to have been no question raised in the trial court of the sufficiency of the first count in the indictment to charge forgery of the endorsement upon the check therein set out, — either by motion to quash, objection to the introduction of testimony, or exception to the charge of the court submitting to the jury appellant's guilt under said count based upon their belief that he falsely made such endorsement.
It is evident from the record that the State's contention upon this trial was that appellant wrote upon the check set out in said first count, without lawful authority and with intent to injure and defraud, the name of J. H. Dillard as an endorsement on said check. The whole contention of appellant upon the trial, as evidenced by the testimony for the defense and the special charges requested, was that he was authorized or sufficiently believed himself authorized to write Dillard's name on said check as such endorsement. Upon this issue the battle was fought out in the lower court, the case tried, and a verdict rendered finding appellant guilty as charged in the first count of the indictment.
We are of opinion that said count one charges appellant with the forgery of said endorsement, and that said count was not defective in substance. Exception to the substance of an indictment must have been for one or more of the four reasons which are set out in Art. 511, C. C. P., none of which was advanced against the indictment or any part thereof in this case. Rangel v. State, 22 Texas Crim. App. 642. Complaint of the mere form of an indictment can not be for the first time made in a motion in arrest of judgment. Leon v. State,95 Tex. Crim. 124; Melley v. State, 93 Tex.Crim. Rep..
Much of the able and ingenious argument in the brief of appellant's counsel is addressed to the sufficiency of the indictment and the question of variance.
We are further of opinion that the testimony which showed that appellant received from the county treasurer a check payable to J. H. Dillard, and thereafter himself wrote the name "J. H. Dillard" as an endorsement on said check, — was responsive to and fully met the allegations of forgery appearing in the first count of said indictment. Appellant as a witness admitted the receipt of said check from said treasurer, but claimed that J. H. Dillard owed him and that he believed he had the authority to write Dillard's name on said check. When cashed, said check bore the endorsement of *Page 205 Dillard which was shown to be in appellant's handwriting. Appellant was a county commissioner, and on the witness stand admitted that he put into the commissioners court a claim for pay to Dillard for road work, which was allowed by the commissioners' court and a warrant for the amount was made out and delivered to appellant, who took it to the county treasurer and exchanged the warrant for the check mentioned, which check was payable to Dillard and was thereafter cashed by appellant, having upon it at the time the name of Dillard endorsed in appellant's handwriting. Dillard swore that the county owed him nothing for road work, that he put in no claim therefor, and did not authorize appellant to write his name on said check. The evidence, as above stated in our opinion, is responsive to and meets the allegation and is sufficient.
Appellant offered a number of witnesses to prove his good reputation as a peaceable, law-abiding citizen. The State thereupon admitted in open court that appellant's general reputation in the respects mentioned, was good until the happening of the events here involved. Thereupon the court declined to permit said witnesses to testify, and appellant excepted. There was no error in the court's action in reference to refusing to permit said witnesses to testify, in view of said admission. Becker v. State, 190 S.W. Rep. 185, and authorities cited. Other cases have since been rendered affirming the holding in the Becker case.
We have examined the contentions set up in bills of exception 2, 3 and 4, and think none of them show error. A habit of appellant to cash checks for men in his employ; his wife's occasional payment for appellant of men who worked on the road by giving checks on appellant's bank account; his arrangement with other men to pay parties who worked for him as commissioner, and that thereafter he got warrants and checks and paid the parties with whom such arrangements had been made, — would none of them shed light on the guilt or innocence of the accused in this case it being shown by the testimony that appellant put in a claim for a man who swore that he had done no such work and had no right to such claim, and that if appellant thereafter endorsed upon the check representing final settlement of such claim the name of such man, such testimony, if true, could not shed light on appellant's claim that he had the right and authority from such man to make such endorsement. The exceptions to the charge of the court complained of in bill of exception No. 5 are deemed of no merit. *Page 206
Believing that the case was fairly tried, and that the first count in the indictment sufficiently charged the offense of forgery of the endorsement on the check, and that it was met by the proof made, we are of the further opinion that the State's motion for rehearing should be granted, the judgment of reversal heretofore rendered set aside, and the judgment of the trial court affirmed, all of which is now accordingly ordered.
Granted.
ON APPELLANT'S MOTION FOR REHEARING.