ON MOTION FOR REHEARING
WOODLEY, Judge.The indictment against appellant was in two counts. Count one charged the offense of forgery.
Count two charged that appellant “did then and there unlawfully, wilfully, knowingly and fraudulently attempt to pass as true to one Homer Carter, a false and forged instrument in writing, with intent to defraud, and was then of the tenor folio-wing.” The draft was set out and it was further alleged that *4appellant knew it to be forged “and did then and there attempt to pass and pass the same as true, with intent to defraud.”
The indictment further contained paragraphs in which prior felony convictions were alleged.
In his charge to the jury, neither the offense of forgery as charged in the first count, nor the offense of attempting to pass as true a forged instrument, charged in the second count, was submitted.
The jury, on the other hand, was instructed in the court’s charge that appellant was charged in the second coupt of the indictment with the offense of passing a forged instrument; that he did “unlawfully, wilfully, knowingly and fraudulently pass as true to one Homer Carter a false and forged instrument in writing, with intent to defraud, as set out in the indictment.”
The charge, in applying the law, told the jury that if they believed from the evidence beyond a reasonable doubt that the ■instrument set out in the indictment was forged and that the defendant, knowing the same to be a forged instrument, “did knowingly pass to Homer Carter as true the said alleged forged instrument” the jury would find him guilty.
The jury, being so charged, returned a verdict finding appellant “guilty of passing a forged instrument as charged in the indictment” and further found that he had twice before been convicted of a felony less than capital.
The verdict being received, the court entered its judgment adjudging appellant guilty of the offense of passing a forged instrument, and adjudged that his punishment be confinement in the penitentiary for life.
Sentence being pronounced ordering the judgment carried into execution, appellant prosecutes this appeal.
In the latter portion of count two the indictment alleged that appellant did then and there “attempt to pass and pass” the forged instrument.
If it be that the trial court construed the indictment as charging the passing of the forged instrument because of this allegation he was in error. The indictment nowhere alleged that the forged instrument was passed to Homer Carter. It did allege *5that appellant attempted to pass the forged draft to Homer Carter. An indictment containing an identical allegation was before this court in Smith v. State, 81 Tex. Cr. R. 534, 197 S.W. 589. The words “and pass” were held to be surplusage and it was held that the indictment charged the offense of attempting to pass a forged instrument.
The jury’s verdict found that appellant passed the forged instrument, as charged in the indictment. Such verdict, though authorized by the court’s charge, is fatally defective and will not support a conviction for the offense of attempting to pass a forged instrument. It finds the defendant guilty of an offense not charged in the indictment and the variance is fatal. Tarkenton v. State, 138 Tex. Cr. R. 292, 135 S.W. 2d 716.
Appellant’s motion for rehearing is granted, the order affirming the conviction is withdrawn, and the judgment is now reversed and the cause remanded.