Before, the revision of our codes it was permissible in criminal pleading and practice to charge two or more offenses in separate counts of the same indictment; and the further rule was that, when the charges were substantially for the *656same offense, and the several counts were introduced for the purpose of meeting the evidence as it might transpire, the State was not required to elect upon which count to proceed. (Clark’s Crim. Laws of Texas, pp, 422, 426, and notes; Dalton v. The State, 4 Texas Ct. App., 333; see also 1 Archbold’s Crim. Plead, and Prac., 8 ed., pp. 292, 295.)
By the revision we are given an express statute upon the subject, which reads that “an indictment or information may contain as many counts charging the same offense as the attorney who prepared it may think necessary to insert, and an indictment or information shall be sufficient if any one of its counts be sufficient.” (Code Crim. Proc., Art. 433.)
Two counts are contained in the indictment in the case before us, viz., one for forgery, and one for uttering or passing a forged instrument knowing it to be forged. Motions to quash and in arrest of judgment were made, both touching the sufficiency of the indictment. The ground of the motion to quash was that the indictment was duplicitous and charged two offenses. “Duplicity in an indictment is the joinder of two or more distinct offenses in one count.” (Weathershy v. The State, 1 Texas Ct, Appeals, 643.) Such was not the case here; but one offense, was charged in either count. But it is urged that two separate and distinct felonies were chargéd in the same indictment, to-wit., forgery and uttering a forged instrument. Mr. Archbold says:
“If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies and confine himself to that. This is what is technically called putting the prosecution to his election.” (1 Arch. Crim. Prac. and Plead., 8 ed., p. 295.)
“ Offenses of the same character, though differing in degree, may be united in the same indictment, and the prisoner tried on both at the same time, and on the trial he may be convicted on the one and not upon the other, as murder and manslaughter, forging a check and for publishing it knowing it to be false.” (Id., note.)
There is no inconsistency in charging forgery and uttering a forged instrument in separate counts in one indictment; because in their nature the offenses are very similar in character, though differing in the punishment affixed by statute. (Penal Code, Arts. 442 and 443.)
*657The court did not err in overruling the motion to quash. After the introduction of her evidence the State elected to claim a conviction only upon the second count, but it is to be noted that the first count was not stricken out nor abandoned, any further or for any purpose other than that a conviction would not be claimed thereunder for the forgery. It is now contended that by abandoning this first count the second was rendered insufficient of itself and did not charge any offense; and that the second count can only be made sufficient by reference to and supplying its defects from the allegations in the first count. Had the first count been stricken out on motion to quash or on demurrer, there might have been some plausibility in the position. But not having been stricken out, or abandoned for any other purpose than that a specific conviction would not be claimed under it, it was still for all other purposes a part of the indictment. This point was decided in Wills v. The State, 8 Mo., 52, in which case it was held that “Where an indictment contained two counts, on the first of which a nolle prosequi was entered, and the time of committing the offense was only averred by reference to the first count, the defendant might be tried and convicted on the second count, it (the first count) not being stricken out or rendered null as perhaps it would have been upon a demurrer sustained.” (Hutto v. The State, 7 Texas Ct. App., 44.) Under the circumstances here shown, even if the second count had, as supposed, been insufficient, its defects could be supplied in the particulars mentioned, by reference to the allegations of the first count.
But it is further contended that the conviction should not stand because the evidence shows that the forged instrument, when first presented by defendant to Marberry, was without date, and that Marberry would'not consent to take it without it was dated, he believing a date essential to the validity of such a writing. That Marberry then, with consent of defendant himself, wrote the date of the instrument, accepted it, and paid his money upon it. Whatever Marberry’s peculiar views on the subject might have been, or however correct his objection in a commercial view, the instrument, if genuine, though without a date, would have created “a pecuniary obligation” upon the maker, and the affixing a date to it consequently did not affect defendant’s liability under the law. (Penal Code, Arts. 431, 437.)
Defendant’s guilt was most abundantly established by the *658evidence, and we find no error in the rulings of the court below requiring a reversal of the judgment, which is affirmed.
Affirmed.
Opinion delivered March 21, 1883.