Conviction is for forgery; punishment fixed at confinement in the penitentiary for two years.
The instrument is a check for six dollars, payable to D.W. McBride, or bearer. It is thus described in the indictment.
". . . the act of T.O. Johnson, which said false instrument in writing is to the tenor following, Windfield, Texas, 1/11/1921 THE FIRST NATIONAL BANK 88-297. of Mt. Pleasant, Pay to D.W. McBride, or Bearer, $6.00/00 Six____Dollars, C.M. McBride, D.W. McBride, T.O. Johnson."
No check was introduced in evidence; at least, it is not found copied in the statement of facts. In a prosecution for forgery, unless upon a proper predicate the forged instrument is proved by secondary evidence, it is essential that the written instrument described in the indictment be introduced in evidence. Bobbitt v. State, 89 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, Sec. 1413; Wilson v. State, 92 Tex.Crim. Rep., 243 S.W. Rep., 466. Such evidence as is found with reference to the instrument declared upon does not support the averments in the indictment, descriptive of the alleged forged writing. We gather from the statement of facts that T.O. Johnson did not sign a check but that his name was indorsed on the back of one. The indorsement was not a part of the check. Branch's Ann. Texas. Penal Code, Sec. 1397; Mettall v. State, 59 Tex. Crim. 216, 232 S.W. Rep., 316. If it is the desire to prosecute for forging the name of the indorser, the indictment should be so framed as to coincide with the evidence to that effect.
The judgment is reversed and the cause remanded
Reversed and remanded.
ON REHEARING January 17, 1923.