ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.Appellant reiterates in his motion for rehearing the proposition that there is a variance in the complaint and information and the facts pleaded herein as well as in the facts produced on the trial.
It is alleged that the appellant did unlawfully with intent to defraud obtain certain money from a certain person by the giving arid drawing of a certain draft upon a certain bank, to-*239wit: Lakewood State Bank, Dallas, Texas, which said draft was then and there of the tenor following:
“Dallas, Texas, 3-1 1952
TO THE Lakewood Bank Dallas
PAY TO THE
ORDER OF THE GREAT ATLANTIC & PACIFIC
TEA COMPANY $22 50/
Twenty Two ______________________________50/100 DOLLARS
406 S. W. Life Ins. Bldg.,
RA 6623 J. H. Porter
with which said bank the defendant did not at the time said draft was so given and drawn have sufficient funds to pay such draft and all other checks and drafts upon said funds outstanding at the time said draft was so given and drawn. Against the peace and dignity of the State.”
It is contended that upon the face of this instrument itself it fails to charge an offense as denounced by law. The instrument pleaded herein in haec verba seems to be directed to the Lakewood Bank. The testimony shows that there was no Lakewood Bank but that the name of the same was the Lakewood State Bank. It was charged that the check itself was directed to the Lakewood Bank.
It is the duty of the state to show the facts as near as possible which are relied upon to constitute the commission of an offense. It should have been alleged by innuendo that the check or draft was intended for the Lakewood State Bank, but when the check itself was presented in the information it was not shown to have been offered to the Lakewood Bank. Under the circumstances we think there is a variance on the face of the information itself. This variance should have been met, if possible, by an innuendo averment showing that the same was intended for the Lakewood State Bank. See McBride v. State, 48 Tex. Cr. R. 213, 88 S.W. 237. True it is that the testimony shows that the Lakewood State Bank was sometimes called the Lakewood Bank, but we do not find such an averment on the face of the information and therefore the information itself is confusing and uncertain and is not able to be understood that such phrases have the identical meaning.
We notice a further matter. Article 567b, Section 1, Vernon’s P.C., provides that it shall be unlawful for any person to give a check, draft or order upon any bank, person, firm or corporation, “knowing at the time of such making, drawing, uttering *240or delivering” that he.has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, etc. We do not find such allegation in the information in this cause.
We recently held in Pallage v. State, (Page 41, this volume), 253 S.W. (2d) 47, that it was necessary to allege that the accused, when he gave such check, had knowledge of the fact that there were no funds in the bank drawn upon for the payment thereof. See also the recent case of Knight v. State, (No. 26,051) (Page 158, this volume).
The motion for rehearing is granted, the order of affirmance is set aside, the judgment is now reversed and the prosecution ordered dismissed.