On account of an unusual combination of circumstances a rather peculiar situation has arisen in this case.
The original opinion reversing the judgment and remanding the case for new trial was delivered on May 30, 1928; on June 9th, 1928, well within the fifteen days for filing motions for rehearing, appellant filed a motion asking this court to amend its judgment and instead of ordering the case remanded that it be ordered dismissed. This motion was submitted on June 13th; court adjourned on June 30th on which day the state filed a motion for rehearing. Not being able to dispose of the matter before adjournment the motions were carried over to a succeeding term of court. On January 15, 1930, the state's motion was granted. Appellant now challenges the right of the court to consider the state's motion on the ground that not having been acted on during the term in which the original opinion was rendered, and having been filed after the lapse of more than fifteen days from rendition of the opinion said motion for the state should not have been considered at all. If appellant himself had not on June 9th filed the motion heretofore referred to the soundness of his position with reference to the matter would not be debatable. Carusales v. State, 47 Tex.Crim. R., 82 S.W. 1038; Bailey v. State,11 Tex. Crim. 140; Craddock v. State, 15 Tex.Crim. R.; Kraft v. State, 86 Tex.Crim. R., 217 S.W. 1038; McGhee v. Romatka, 92 Texas Rep. 241; Fitts v. State, 98 Tex.Crim. R.,264 S.W. 1006. However, when appellant filed his motion it suspended the judgment, and the motion not having been acted on during the term the matter was carried over under our practice. (McGhee v. Romatka, supra.) It seems unnecessary to specifically determine what — under the circumstances stated — was the status of the state's delayed motion for rehearing, as in the opinion of the writer, the disposition of the case turns upon another point. *Page 207
There were four counts in the indictment. The third charged the passing of a forged instrument and the fourth charged the possession of a forged instrument with intent to pass it. Those counts were not submitted but only the first and second. Omitting formal parts the first count alleged that appellant "did then and there unlawfully and without lawful authority, and with intent to injure and defraud, make a false instrumentin writing, which said false instrument in writing so made was then and there of the tenor following:
M. C. Boyd County Treasurer Childress, Texas 6-18 1924 Pay to J. H. Dillard or order $44.00 Forty four no/100 ........ Dollars To the Farmers Mechanics State Bank Per M. C. Boyd 88-254-11 Childress, Texas County Treasurer, By Frank W. Freeman 8421
And endorsed on the back thereof: — J. H. Dillard."
It will be observed that in count one there is no averment as to the "purport" of the instrument in question, and by its tenor it must be construed to mean what the language employed would in its ordinary use convey. In the second count it is charged that appellant did "without lawful authority, and with intent to injure and defraud, wilfully and fraudulently make a false instrument in writing, purporting to be the act of J. H.Dillard, by then and there writing on the back of a check issued by the County Treasurer of Childress County * * * and being of the tenor following," (here setting out the check as in the first count and continuing with the following averments). "And endorsed across the back of it, 'J. H. Dillard,' the name of said J. H. Dillard, written on the back thereof so as to thereby make said writing appear as an endorsement of the said check by the said J. H. Dillard, and in such manner that the said false endorsement so made, would if the same were true, have created a pecuniary obligation and have transferred said instrument."
There is no doubt about what the pleader was aiming at in the second count. It is charged in unmistakable language that appellant forged J. H. Dillard's endorsement on the back of a bona fide *Page 208 check issued under authority of the County Treasurer of Childress County. The averments of the second count comply literally with Sec. 410, p. 1472, Bishop's New Cr. Proc., Vol. 3, (2d Ed.) which reads:
"An endorsement on a note or check which without it is complete, so does not in law constitute a part of it, need not be set out in an indictment for the forgery thereof. For theforgery of the endorsement, the indictment must have suchaverments as will make the offense affirmatively appear."
See Commonwealth v. Spilman, 124 Mass. 327.
Said second count is in almost the exact language found in Miller v. State, 34 S.W. 267, in which accused was charged with forging an endorsement on the back of a genuine draft. This language is taken from the opinion in Miller's case.
"It will be noted, in this case, that the gravamen of the offense here is not the writing and making of said described instrument, but the endorsement on the back thereof of the name, 'A. C. Witty.' "
What are the facts in the present case? There is no dispute about who made the check. The uncontradicted testimony shows appellant did not make it, but that it was a bona fide check issued by Frank W. Freeman, acting for the County Treasurer; therefore the gravamen of the offense under the undisputed facts was the endorsement of Dillard's name on the back of the check, which was pertinently charged in the second count, thus conforming to Judge Morrow's language in the opinion in McBride v. State, 93 Tex.Crim. R., 246 S.W. 394.
"If it is the desire to prosecute for forging the name of the endorser, the indictment should be so framed as to coincide with the evidence to that effect."
The averments of the second count did coincide with the evidence, the averments of the first count did not.
The check issued by the County Treasurer was a complete instrument. The signature of "J. H. Dillard" thereon, if genuine, would make him liable as an endorser and would transfer the check to the bearer, but it was no part of the check itself, not being necessary to complete it, and therefore did not constitute a part of it. In Strang v. State,32 Tex. Crim. 219, 22 S.W. 680, and in Carter v. State, 55 Tex. Crim. 43,114 S.W. 839, it is held that the forgery of the name of a payee upon an existing valid negotiable instrument is forgery by alteration. To the mind of the writer the *Page 209 averments in the first count convey no impression of an effort to charge any such forgery. There is in said count no positive and certain averment that appellant signed the name of Dillard on the back of said check. In State v. Knippa, 29 Tex. 225, accused was charged with forgery by altering and obliterating a receipt for cotton. In the opinion is found the following statement:
"The grand jury must, of necessity, hear the testimony before returning a bill for a violation of law. The facts constituting the offense ought to be known to the officer who is to prepare the bills of indictment, and the offender should be charged with the particular offense which the evidence shows he has committed, and not with that offense and something else, when it clearly appears that he could not have committed the two or more offenses, as alleged. It is not perceived how the defendant could possibly have altered the receipt by adding a word to or erasing a word from the receipt, and by the same act obliterate, blot out, and destroy the entire receipt."
In Gumpert v. State, 88 Tex.Crim. R., 228 S.W. 237, the passing of a forged check was alleged, and after setting out the check — as was done in the present case — there followed the words "endorsed on the back thereof, Roy Miller." It is said in the opinion:
"The check was complete without the endorsement. Branch's Ann. Tex. Penal Code, Sections 1397, 1409; Hennessey v. State, 23 Tex. App. 354[23 Tex. Crim. 354], 5 S.W. 215; Bishop's New Crim. Procedure, vol. 3, Sec. 410.
"No attempt was made to charge that the instrument had been altered by making thereon a false endorsement. Strang v. State, 32 Tex.Crim. R., 22 S.W. 680; Carter v. State, 55 Tex. Crim. 43,114 S.W. 839.
"The instrument which was the subject of the forgery, under the allegations, was a check. In alleging that it bore the endorsement 'Roy Miller,' the pleader put upon it an unnecessary descriptive averment, but did not thereby render the indictment bad," — meaning an indictment for forging the check.
Thus it is seen that even though an endorsement placed on an alleged forged check after its execution is averred in the indictment, it is regarded as an unnecessary allegation as the endorsement is no part of the instrument. An examination of the authorities cited in Cofer v. State, 107 Tex.Crim. R.,295 S.W. 189, reveals many holdings of this court that although the alleged false instrument *Page 210 bears an endorsement placed there after its execution, that the presence of the endorsement constitutes no variance with the instrument described in the indictment with the endorsement omitted. Where an endorsement of a certain kind is essential to the completion of or the validity of an instrument said endorsement must be averred (Robinson v. State, 35 Tex. Crim. 54) otherwise not.
Mention has been made of the fact that no attack was made on the first count of the indictment by motion to quash. What attack could have been made on it either in that manner or by motion in arrest of judgment? The count is good because it charges an offense, but the question is, does it charge the offense of which appellant is guilty under the evidence, if of any. Under all the authorities referred to and the approved Criminal Forms for indictments for forgery (See Wilson's Cr. Forms, 4th Ed., No. 410 and 411, and Branch's Ann. Tex. P. C., Sec. 1396) the plain import of the language employed in count one of the indictment charged appellant with having forged the check described. The holding of the various cases would lead to the inference that by the added words "and endorsed on the back thereof, J. H. Dillard," the pleader was simply making an unnecessary averment regarding an endorsement placed on the check after its execution. The sufficiency of an indictment must be measured by its allegations and not by the evidence. In the opinion of the writer the first count in the indictment fails to charge appellant with forgery of Dillard's endorsement at all. It does charge him with forgery of the check, of which offense he is shown to be not guilty by the state's own evidence. A person reading the first and second counts of the indictment, and being ignorant of the facts as subsequently developed, could by no ordinary construction of language reach the conclusion that the first count charged, or was intended to charge, a forgery of the endorsement. This is especially true in view of the fact that the second count specifically and pertinently does so charge.
In submitting the case on the first count the jury were told if they found from the evidence beyond a reasonable doubt that appellant with intent to defraud and without lawful authority falsely and fraudulently made the instrument in writing described in the indictment "in that the said J. W. Cochran did unlawfully, falsely and fraudulently and with intent to injure and defraud and without lawful authority, endorse said instrument in writing by writing on the back thereof the name J. H. Dillard so as to make the instrument *Page 211 appear to have been endorsed by the said J. H. Dillard" they would find appellant guilty under said first count. The second count was submitted in accordance with the allegations of the indictment with reference to said count. For some reason the jury saw fit to find appellant guilty under the first count. No objection was interposed to the manner in which the first count was submitted. However that in no way affects the question, if said first count does not charge forgery of the endorsement. It cannot be denied that the first count does unquestionably charge that appellant forged the check itself. If it be debatable that it also charged forgery of the endorsement there would be a variance between the allegation and the proof as is very clearly held in Pierce v. State, 38 Tex.Crim. R.,44 S.W. 292, because as heretofore pointed out, the evidence is undisputed that appellant had nothing to do with the execution of the check, but that it was a bona fide instrument issued by authority of the County Treasurer of Childress County. It may be unfortunate for the state that the jury selected the first count upon which to predicate the verdict. In our opinion, under the evidence, the first count should not have been submitted.
We are of opinion that that part of appellant's motion seeking to have us amend the original judgment reversing the case by also ordering the dismissal of the prosecution cannot properly be sustained. We can not assume that the evidence upon another trial, if one should be had, will be the same as found in the present record. If it should be the views heretofore expressed are sufficient guide for the trial court.
After as careful investigation of the matter as we have been able to make we have reached the conclusion that we fell into error in granting the state's motion for rehearing and that our opinion upon that motion should be set aside and that the appellant's motion for re-hearing should be granted, save in the particular above mentioned, and that the original judgment reversing and remanding the case should stand, and it is so ordered.
Reversed and remanded.