The correctness of the original opinion in this case is vigorously assailed on many grounds. (1) In the first place, it is urged that there is a variance between the instrument offered in evidence and the one set out in the indictment. The indictment alleges that the pay check was for the sum of $65.47. The instrument itself was not offered in evidence, nor was it required to be offered any more than a horse alleged to have been stolen would have been required to have been produced before the jury. The testimony of Mr. Templet, as contained in the statement of facts, to whom the check was exhibited, repeatedly stated that the amount of the check was for $65.47, and as tested by the record there is not the slightest evidence of a variance. It is true that in one of the bills of exception filed in the record, that the testimony was objected to for the reason, as stated by counsel, that the identification of the check was insufficient, because such identification was due, as stated, to the fact *Page 379 that the check bears the figures $67.47. We note in the statement of facts that in several places the check had been originally written $67.45 and is changed in figures to $65.47. The mere statement in a bill of exceptions of these figures is not a finding of fact nor an adjudication of the court that this was the amount of the check. A statement of objection by counsel is not a determination of the truth of the facts urged as a ground of objection. This has been so often held that we deem it unnecessary to cite authorities to sustain the proposition.
2. Again, it is urged that this check could not be the subject of theft for the reason that it contained a provision that it is not good or payable unless properly endorsed by the payee and countersigned by F. Lewis, and it is urged that inasmuch as the check was not endorsed by the payee, B. Templet, that same could not be the subject of theft. The answer to this objection is that the check does not appear in evidence, and there is nothing in the record to indicate or show that such check contained such a provision.
A careful inspection of the record convinces us more firmly that the original opinion is correct, and it is, therefore, ordered that the motion for rehearing be and the same is hereby overruled.
Overruled.