We have considered the well-reasoned and ingenious motion for rehearing filed by appellant. We do not think the fact that the alleged forged check bore addresses and notations not set out in the haec verba description thereof in the indictment would be such variance as would call for reversal. Authorities are cited in Branch's Annotated P. C., sec. 1397.
It is only when a case rests entirely on circumstantial evidence that the court must charge on that theory. We do not think this such a case. The averment was that appellant forged an endorsement of the name of Henry Lewis on the back of a check, which was set out. The proof showed without contradiction that appellant's name was M. L. Hancock and not Henry Lewis, and that he presented said check to a business concern in Austin, and told the clerk who waited on him that his name was Henry Lewis, and in the presence of said employee he endorsed on said check the name of Henry Lewis as his own. This was direct proof of the fact of the alleged forgery and obviated the necessity for a charge on circumstantial evidence.
Appellant introduced no testimony, and asked no special charges. He sought to prove that the concern alleged in the second count of said indictment, as being the party to whom the check was passed as alleged therein, was not incorporated, his reason for the admission of such testimony being that it contradicted and impeached the testimony of the employee who had been asked and repeatedly answered that the concern was incorporated. The second count was not submitted to the jury. We think the matter correctly passed on in our original opinion as one of immateriality. *Page 22
We have carefully gone over the case in the light of appellant's motion. We are unwilling to say that there was not proof sufficient that Henry Lewis was dead, and that no such person lived in Austin. The facts seem sufficient.
The motion for rehearing will be overruled. Overruled.