Heretofore this cause has been reversed and remanded because of the trial court's failure to charge on a supposed exculpatory statement made by the accused to the State's witness Harp relative to the receipt of the alleged forged check in payment for oil supposedly purchased from appellant. Upon the filing of this motion, and a careful re-reading of the record, we find that we were in error in our statement relative to what was said by appellant to the witness Harp. Evidently our mistake was based upon the following statement in appellant's brief:
"The evidence shows that he (appellant) passed a check to the complaining witness telling such witness at the time of such passing that the check had been given to him in payment for some oil." This statement is not borne out by the record. We find that appellant made no such statement to any witness whose testimony appears in the statement of facts. We do find, however, where appellant attempted to get his brother to testify to practically the same facts, and that his brother refused *Page 547 to do so. We also find where one witness for appellant testified that he had seen a man of the same surname as that signed to the check who had purchased a barrel of oil from the witness, but witness only knew the surname of the purchaser of the oil. We find nothing further in the record that would exculpate the appellant. We do find many circumstances that would inculpate him. We also find that the court gave a proper charge on circumstantial evidence as well as a charge, in substance, saying that if the jury found, or had a reasonable doubt thereof, that a man by the name of Less G. Armstrong (the name signed to the check) gave this check to appellant, to acquit the appellant.
We misapplied the rule set forth in the Otts case, supra, to these present facts; they do not call for an application thereof. It will be noted that appellant was charged and convicted herein of passing a forged instrument, knowing the same to have been forged. Had he made the statement claimed to have been made by him to Mr. Harp, it would only have exculpated him from the offense of having made the instrument alleged to have been forged; it would not have exculpated him from having had the knowledge that same was a forged instrument at the time he passed the same as true. Had he been convicted of himself making the instrument, a different situation may have arisen, but under his conviction for knowingly passing as true such check, this condition does not arise. Thus believing, we find that we were in error in applying the rule in the Otts case to the facts shown herein.
We now think that this matter was properly disposed of by the trial court, and the State's motion for a rehearing is granted, our judgment of reversal is hereby set aside, and the trial court's judgment is affirmed.