This case was reversed for a supposed variance between the proof and the allegation in count one of the indictment, under which conviction was had, and in which appellant was charged with forgery of the written instrument set out in our original opinion, which included the endorsement of J. H. Dillard on the back of a check. The State asserted that there was no such *Page 212 variance. What in fact is a variance of such materiality as to call for such reversal, is a question of much interest, and one which presents many angles.
Without citing the authorities, it may be stated that we allege theft of one head of cattle, and prove theft of a hundred, or vice versa; we allege theft of a horse, and prove theft of a mule, a mare, a colt or a stallion, — fifty of any or all of these; we allege an assault with a gun, and prove an assault with a pistol or other similar weapon; we allege the commission of an offense on a date named, and prove same was committed a year prior to such date; we allege an offense was committed by the accused, — we prove it was done by another person not named, but who was acting together with the accused in such commission; we charge a crime as committed by the accused therein named, and prove same to have been done by an innocent agent who is not named; we allege that the accused killed two men, and prove that only one was killed; we allege an assault with a gun, a knife and a bludgeon, and prove an assault with only one of the weapons named; we allege theft of fifty articles, and prove theft of any one or more of same, and in all these instances hold there is no variance. As applicable then in any case or in every case, what is a variance?
The definition of Mr. Greenleaf, as laid down in Sec. 63, Greenleaf on Evidence, — approved by this court in Warrington v. State, 1 Texas Crim. App. 173, and other later decisions, — has been practically followed without change. It is: "A disagreement between the allegation and proof in some matter which in point of law is essential to the charge or claim." Mr. Underhill in Sec. 80, Chap. 9 of the 3d. Ed. of his valuable work on Criminal Ev., states the present rule as follows:
"What variances are material. — The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being put in jeopardy for the same offense?"
22 Cyc, p. 450, adopts Mr. Greenleaf's definition, supra, and on p. 456, id. it is said: *Page 213
"A variance will not result where the allegations and the proof, although variant, are of the same legal signification. The fact that the charge is general and the proof particular, does not necessarily show a variance."
As supporting the text, the citations are Adams v. People, 25 Col. 535, 55 P. 806; State v. Regan, 63 Me. 127; Com. v. Pease, 137 Mass. 576; Weinecke v. State, 34 Neb. 14; State v. Brown, 82 N.C. 585; Somers v. State, 5 Sneed (Tenn.) 438. In Kruger v. State, 135 Ind. 573, 35 N.E. 1019, it is said:
"A variance is not now regarded as material unless it is such as might mislead the defense or expose the accused to the danger of being put twice in jeopardy for the same offense."
Wharton's Crim. Law, 10th Ed., Sec. 90, states as follows:
"Variance at law is the difference between the essential parts of a legal proceeding that, to be effectual, must agree with each other.
Such difference is characterized as a material variance or an immaterial variance.
(a) A material variance at law is such a difference between the essential parts of a legal proceeding that one of such parts is rendered ineffectual to such a degree that the proceeding fails.
(b) An immaterial variance at law is a difference between the essential parts of a proceeding that does not so affect the relation between them as to destroy the legal sequence.
Modern rule of material variance. — Variance in criminal law, is not now regarded as material, unless it is of such a substantive character as to mislead the accused in preparing his defense, or places him in a second jeopardy for the same offense."
That the principles involved in the above authorities, applied to the instant case, in fact wholly exclude any claim of variance, seems plain from the record herein. Appellant was charged in count one of the indictment with falsely making a written instrument set out by its tenor, which included the endorsement of J. H. Dillard. The only claim of the State from the inception of the case was that appellant forged said endorsement and thereby falsely made the whole instrument as it stood after such endorsement. That such was its claim and charge against him was known to and acquiesced in by appellant throughout the trial. The facts showed him to have been a county commissioner of his county at the time of the alleged forgery, and that as such he had charge of road work in his precinct; that as such he made out and presented to the commissioners' court of said county a claim in the sum of $44.00 due to J. H. Dillard for *Page 214 work on said road; that when the claim was allowed a warrant for said amount was made and delivered to appellant who took it to the county treasurer by whom the check in question was written payable to J. H. Dillard for said sum, and said check was delivered to appellant. When next seen said check bore the endorsement "J. H. Dillard," and also the endorsement of appellant. The Dillard endorsement was shown on this trial to be in the writing of appellant, and Dillard denied having made same. Appellant took the stand in his own behalf and substantially admitted the above facts, but claimed that Dillard owed him at the time, and that the money on said check was either given to Dillard or he was given credit therefor on account by appellant. The whole defense was based on appellant's belief that he was authorized, or that he believed himself to be authorized, to sign Dillard's name to said endorsement, and that therefore he was wholly without intent to injure or defraud. As illustrative of his theory, we quote from two special charges asked by appellant. Special charge No. 4 asked by appellant and given by the trial judge was as follows:
"You are instructed that a person is not guilty of forgery when he makes an instrument in writing acting under an authority which he has good reason to believe and does believe to be sufficient, though in fact the authority be insufficient and void. And the burden is upon the State to prove beyond a reasonable doubt that the defendant signed the name of the witness Dillard on the check named in the indictment without authority and without good reason to believe or did actually believe that he had such authority.
"Therefore, unless you find that the testimony shows beyond a reasonable doubt that the defendant signed the name of the witness Dillard on said check without good reason to believe, or actually did believe that he had authority to so sign said name, you will find him not guilty and so say by your verdict."
Special charge No. 8 asked by appellant and refused by the trial court, was as follows:
"Defendant requests the following instructions to the jury:
"You are instructed that if the check named in the indictment was given for work actually done upon the roads of Childress County, by the teams of defendant and for work of Roy Dillard, on said road, then defendant would be entitled to receive the proceeds of said check and his endorsement of the name of J. H. Dillard thereon would not be forgery, and if you find from the evidence that such was the case, you will find the defendant not guilty." *Page 215
In his main charge to the jury the court below stated the law applicable to the first count of the indictment as follows:
"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant J. W. Cochran, with intent to defraud, and without lawful authority, did, in the County of Childress and State of Texas, on or about the 18th day of June, 1924, falsely and fraudulently make a certain instrument of writing of the tenor following, to-wit:
M. C. Boyd, No. 2837 County Treasurer. Childress, Texas, 6-18-1924
Pay to J. H. Dillard or order $44.00 Forty four and no/100 ........ Dollars
To the Farmers and Mechanics State Bank 88/254-11. Childress, Texas
Per M. C. Boyd County Treasurer By Frank W. Freeman.
8421
And endorsed on the back thereof: 'J. H. Dillard' — in that the said J. W. Cochran did then and there unlawfully, falsely and fraudulently, and with intent to injure and defraud, and without lawful authority, endorse said instrument in writing by writing on the back thereof the name of J. H. Dillard, so as to make said instrument appear to have been endorsed by the said J. H. Dillard, you will find the defendant guilty as charged in the first count of the indictment and assess his punishment at confinement in the State penitentiary," etc. There was no exception to the charge nor to the acceptance or rejection of evidence, even remotely suggesting or presenting any claim of variance.
Appellant was not misled. He fully made the only defense he had. It was submitted to the jury in terms of appellant's own choosing. They were told by the trial court in plain words that if they believed beyond a reasonable doubt that appellant falsely made the instrument set out in count one by writing Dillard's name on said check as an endorsement, and that this was without authority and with intent to injure and defraud, they should find him guilty under count No. 1. Such presentation appears to have been satisfactory to appellant. The battle was fought out between appellant and the State on these lines. Appellant lost. He made a motion in *Page 216 arrest of judgment, but in same said nothing of any variance. Plainly there could be no danger of jeopardy from a second prosecution for the offense charged against him.
We may here say that if there be such material discrepancy between the allegations of an indictment, and the proof made, as that in any point of law essential to the crime charged or attempted to be charged, the proof failed to support or meet the averments, — such discrepancy or variance could be raised in this court in its first instance. As a requisite to a legal conviction of a felony any man accused of crime has the right to demand not only proof that he is guilty of a crime, but also that he is guilty of the particular crime charged against him in the indictment then before the court.
The pith of appellant's contention, if we understand him, is that the placing of an endorsement on an instrument already in existence is an alteration of same; and that in such case it would not do to charge him with falsely making the whole instrument, including the endorsement, but that he must be charged in terms with having altered a genuine document; in short, that falsely making the endorsement in this case would not be falsely making the instrument thus endorsed. The exact question seems not to have been before this court heretofore, hence need for care in making a precedent as well as in correct decision of the particular case.
The text books seem in accord. Wharton's Criminal Evidence, 10th Ed., Sec. 114, says: "The parts of the document on which the prosecution rests need not be set out in the indictment." The case of Gardiner v. State, 23 N.C. 27, is cited in support of the text. From same we quote:
"The forgery may have consisted of alterations of a true instrument, as by making the same mentioned in the bond more or less than it was at first, or by adding the names of the other two obligors without their knowledge or consent, and that of the obligee. Now it is a settled rule that in such cases the forgery may be charged specially by alleging the alterations; or the forgery of the entire instrument may be charged, — and this last will be supported by evidence of the alterations. * * * After the alterations the instrument as a whole is a different instrument from what it was, and therefore in its altered state it is a forgery of the whole."
Bishop's New Crim. Procedure, 2 Vol., Sec. 488d, says:
"In forgery, on an averment that the whole instrument is forged, proof of the forgery of any material part suffices." *Page 217
Wharton's Crim. Proc., Vol. 1, 10th Ed., Sec. 670, states:
"Any change or alteration of a genuine written instrument in a material part thereof, with intent to injure or defraud, by means of which alteration the instrument is given a new effect, — constitutes a forgery of the whole instrument and may be specifically alleged to have been done by the alteration, or toconsist of a forgery of the whole instrument."
Bishop's New Crim. Law, Vol. 2, Sec. 573, contains the following:
"The indictment for forgery by alteration may, — if the pleader chooses, — lay the offense as forgery of the entire instrument, — for in law it is such."
19 Cyc. p. 1394, says:
"If defendant has altered a genuine instrument, he may be charged with the forgery of the entire instrument; and if he has procured another to do the act, or has aided therein, he may be charged with doing the act himself."
A number of cases are cited supporting the text. People v. Brotherton, 47 Cal. 401, has the following:
"The next point made for the prisoners asserts a distinction in point of law between the forgery of the check, and its material alteration made for a fraudulent purpose. * * * Any alteration of a genuine instrument, in the material part, whereby a new operation is given to it, is a forgery of the whole. (2 Whart. Cr. Law, Sec. 1421). And when a genuine instrument is so altered the forgery may be specially alleged, as constituted by the alteration, or the forgery of the entire instrument may be alleged. As altered, it is a forgery of the whole. (State v. Weaver, 13 Ired. 491.) We think therefore that the objection in this respect was properly overruled."
In State v. Maxwell, 47 Ia. 454, it is said:
"The forgery consisted of this alteration. Evidence thereof was sufficient to support the allegation of the forgery of the instrument set out in the indictment."
In Com. v. Butterick, 100 Mass. 12, the court said:
"The averment that the whole instrument has been forged is satisfied by proof of a forgery of any material part."
The same holding will be found in Com. v. Boutwell,129 Mass. 124. In State v. Floyd, 5 Strob. (S.C.) 58, it was decided upon a full consideration, and citation of many authorities, that an indictment alleging forgery of the whole instrument would be supported by proof of its alteration. So in State v. Flye,26 Me. 312, the *Page 218 point was distinctly made by the defense that as the indictment was for forgery of the order, the defendant could not be convicted upon proof of alteration only, but the court held to the contrary. In State v. Weaver, 35 N.C. 491, it is said:
"There is no doubt that when a genuine instrument is altered so as to give it a different effect, the forgery may be specially alleged as constituted by the alteration, or the forgery of the entire instrument may be charged. As altered it is a forgery of the entire instrument."
It was the insistence of the defense in said case that evidence of an alteration did not support a charge of forgery of the whole instrument.
What is the legal effect of an endorsement? Art. 5936, Revised Civil Statutes, 1925, pointedly states that an endorsement without qualification warrants to any holder in due course, the genuineness of the instrument as it stands, — that it is what it purports to be, and there can be no question of the liability of such endorser for every obligation of the instrument so endorsed. Art. 992, 1925, P. C. goes a step further, and in so many words and as plainly as language, stripped of ambiguity and needing no interpretation, can state, says that the maker of the endorsement makes the wholeinstrument as well. Omitting nonessential words, same says:
"It is forgery to make * * * a written instrument by filling up over a genuine signature, or by writing on the opposite side of a paper so as to make the signature appear as an endorsement."
In Wheeler v. State, 62 Tex.Crim. Rep., the forgery was shown to have been done by filling up over a genuine signature. The allegation seems to have been of a forgery of the whole document. The case was affirmed. See also Hooper v. State, 30 Texas Crim. App. 412.
So in Darbyshire v. State, 36 Tex.Crim. Rep., where forgery was laid of an entire instrument set out together with an endorsement thereon, and the proof showed the body of the instrument to be in the writing of the accused, but not the signature. The trial court charged the jury that if the accused wrote the name or any part of the instrument, he would be guilty of forgery. Approving this charge on appeal Judge Davidson says: "If the defendant forged the note or any part of it, he knew it was a forgery; and if he wrote any part of the note he was as guilty as if he had written the entire instrument." In Thurmond v. State, 25 Texas Crim. App. 366, attack was made on a forgery indictment wherein the document set out contained several names, and no allegation as to *Page 219 which of said names was forged. The indictment was upheld. In Crawford v. State, 31 Tex.Crim. Rep., appears a case in which the instrument set out in the indictment contained the alleged forged name only at the beginning of the document set out as forged. This court said the location of the name made no difference if it appeared that the party writing same intended to bind himself. We said: "If he write his name in any part of the agreement, it may be taken as his signature, provided it is written for the purpose of giving authenticity to the instrument." In Elkins v. State, 35 Tex.Crim. Rep., Judge Hurt says: "If the name of the party appears in the instrument, it is immaterial in what part of same it appears, whether at the top or in the middle or at the bottom." We might add that this great jurist might have said in an appropriate case with equal force "or on the opposite side of the paper." In Strang v. State, 32 Tex.Crim. Rep., the accused was charged with knowingly passing as true a forged instrument set out by its tenor, which included an endorsement on the check, it being alleged that the accused knew the endorsement was a forgery. The proof showed the instrument was genuine, save the endorsement, which was forged. This court held that knowledge on the part of the accused at the time he passed the check that the endorsement was forged, — was sufficient to support the charge that he knowingly passed as true the entire instrument set out.
We deem it not necessary to discuss those cases in which appear statements in the opinions in effect that the endorsement is no part of the instrument. They can and should only have application in cases in which the endorsement is placed on the document subsequent to the false making of such instrument, or in which the allegation of forgery does not include the endorsement, or the State's case does not depend on proof of the forgery of such endorsement. It is said in Robinson v. State, 35 Tex.Crim. Rep., and Overly v. State, 34 Tex.Crim. Rep., that if the instrument set out as forged would be incomplete without the endorsement, such endorsement should be alleged. Pierce's case, 38 Tex. Crim. 604, is referred to as analogous to the instant case on the question of variance. Pierce was charged with forging a money order. The proof in his case showed that he forged the receipt for the amount of money called for by a genuine money order. There was no claim in the proof that the money order itself was forged. This court properly held under such facts there was fatal variance between the allegation and proof. *Page 220
The interesting and important question here involved has led us to as thorough an investigation of same as our means of information permit. We are fully satisfied that the conclusion that no disagreement in any point of law essential to the crime of forgery between the allegation and proof, exists in this case, — is sound under the law. The legal sufficiency for the purpose intended of the document set out as forged in any case is primarily for the trial court. It is plain from this record that the judge who tried this case was of opinion that the setting out of the check in question in the indictment, together with the fact that the name J. H. Dillard was endorsed thereon, and further that appellant falsely and with intent to injure and defraud made such instrument, — fully charged him with forgery, and that proof that he falsely wrote the endorsement on the check sufficed to justify his conviction for forgery of the whole instrument. He so told the jury in his charge. Their verdict was necessarily based on such charge of the court. They thus found appellant guilty of making the false endorsement, under instructions from the court to so find him guilty under the first count of the indictment if they believed the endorsement to have been falsely made by him. Under all the authorities above cited this was legal and correct. In this connection we can not forbear quoting what Judge Ramsey said in the Forcy case, 60 Tex.Crim. Rep.:
"There is in the books much curious learning on the subject of forgery, and the office of the tenor and purport clauses in the indictment for this offense have been refined upon by courts until it is sometimes difficult for one to grasp and comprehend the office of either, and these refinements have sometimes, it seems to us, gone to the extent of overshadowing and dwarfing the substance of the matter required to be alleged. What instruments may be the subject of forgery has also quite frequently received judicial interpretation. These instances and illustrations are numerous and not always wholly consistent. We think in later times the niceties of pleading in prosecutions for forgery have not always been recognized; that the trend of modern decisions is to look rather to the substance than to the form that such instruments may take. We can not be unmindful of the fact that with the progress of civilization and the frequency in commerce with which business is transacted by notes, bills, and letters of credit, that it is essential to the protection of the citizen and the integrity of commerce, that a reasonable and sensible rule in prosecutions for forgery should be established. In olden times trade was either a matter of barter or for money in *Page 221 hand. In these times, as we know, but a small percent of commercial transactions are carried on and completed in any other form than by note, bond, checks, orders and drafts. While having due regard for the safety of the individual citizen who may be prosecuted for forgery of any of the manifold instruments conveying or undertaking to convey moneys and property, it is essential that at least some fair regard shall be had to the protection of the great body of our people who are interested in the honesty and integrity of these instruments."
Confident in the correctness of my conclusions above set forth, I regret that I can not agree to this reversal. It seems grasping at shadow and overlooking substance. The supposed variance herein was not such as to mislead appellant either in preparing or presenting his defense, as I have demonstrated above. It ought then not to be sufficient to mislead this court into holding that there was such material variance as to necessitate reversal. Both counts in the indictment were submitted in practically identical language, no objection being offered by appellant, who waged his battle on the proposition that he was charged with making the instrument by writing an endorsement, which endorsement he admitted having written, but claimed authority to so write. Conviction under one count, two being submitted, acquits under the other. Application of this rule will set appellant free. The evidence overwhelmingly shows his guilt. I respectfully record my dissent.