Appellant was convicted of forgery; his punishment assessed at two years confinement in the penitentiary.
The indictment charged appellant with the offense under the name of "Isaiah Colter." He suggested that his name was "Izell Colter," and not "Isaiah Colter." In accordance with this suggestion, the indictment was amended so as to make the name "Isaiah Colter," wherever it occurred in the indictment, "Izell Colter;" thus substituting "Izell" for "Isaiah." Objection was reserved, and a special charge requested instructing the jury to acquit on account of a variance; that is, that the court had authority only to change the name "Isaiah" in the formal portion of the indictment, but not in the charging part, to correspond with appellant's suggestion as to his true name, and that, having changed the name in the formal portion, the name as originally found must remain "Isaiah" in the charging part, and thereby constitute a variance. If this is the correct rule, we would have this remarkable condition in the law: That, by suggesting a name other than the one by which he is indicted, a change would be required in the formal part of the indictment, and the authority withheld to change it in the charging part, and thus place it within the power of a defendant, by suggesting his true name, to constitute a variance in every such indictment. This would be a singular absurdity. The statute must be reasonably construed, and no construction should be placed upon an act of the Legislature that would lead to an absurdity. Article 549, Code of Criminal Procedure, provides: "If the defendant, or his counsel for him, suggest that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself, the style of the cause changed so as to give his true name, and the cause proceed as if the true name *Page 80 had been first recited in the indictment." This statute is not attacked on constitutional grounds, and, so far as we are aware, has not been, and it has been upon our statute books since the creation of the Code of Criminal Procedure. If the Legislature had the authority to authorize defendant to suggest that his true name be inserted in the indictment, then the court in this instance acted properly in having the name corrected wherever it occurred in the indictment to correspond with the defendant's suggestion. The statute does not limit the place in the indictment where this correction shall be made, but refers to the name wherever it occurs.
While upon the witness stand appellant was asked if there was pending against him another case, in which he was charged with forging the name of Grant Hurley. Under the unbroken line of decisions in this State, this testimony was properly admitted. This testimony was properly limited by the court in his charge.
Mr. Thompson, while upon the stand, was handed the alleged forged order, and asked to state to the jury his understanding of what it meant. His reply was that it was an order by A.J. Hurley to Thompson Bros. for a buggy and harness. It was thought necessary by the pleader to include innuendo averments in the indictment, and we suppose this evidence was introduced to prove said averments. While this may have been error, yet, as presented, it is not of sufficient importance to require a reversal of the judgment. Dickson v. State, 34 Tex. Crim. 1.
Defendant, on cross-examination, proposed to prove by A.J. Hurley that it was his custom, at the time of this forgery, to authorize tenants and employes on his farm to sign his name to orders and instruments, for goods and things, to keepers of stores in Kaufman, Texas, subject to his ratification. The witness was not permitted to answer this question, but would have answered in the affirmative. The court explains this bill by stating that the evidence showed appellant was not at the time of the forgery either a tenant or in the employ of A.J. Hurley, and therefore the testimony as to the course of dealing between Hurley and his tenants and employes was immaterial; hence excluded. This ruling of the court is clearly correct.
This witness was further asked if, at the time of the forgery, he would not have indorsed paper for defendant to the amount alleged in the forged order. The witness would also have answered this in the affirmative, but was not permitted to do so. This ruling of the court was also correct.
Appellant presented a bill of exceptions to the remarks of the county attorney in his closing argument to the jury. The court signed this bill, with the statement that there was no exception reserved to the remarks, nor was the court asked to withdraw same from the jury. The testimony is ample to sustain the verdict of the jury, and the judgment is affirmed.
Affirmed. *Page 81