Omitting preceding portions, the indictment charges, that "Henry Brewer * * * did then and there unlawfully and without lawful authority, and with intent to defraud, did willfully and fraudulently make a false instrument in writing purporting to be the act of another, to-wit, the act of C.F. Hathaway, which said false and forged instrument is to the tenor following: 'Paris, Texas, January 13, 1892. Number 2. The City National Bank: Pay to Hury (meaning Henry) Brewer, or bearer, 35 dollars. C.F. Halhaway (meaning Hathaway.)' "
1. It is contended, inasmuch as Hathaway was dead at the time his name was signed to the check, that therefore the making of the false instrument can not constitute the crime of forgery. The authorities do not sustain this position. On the other hand, so far as we have been able to ascertain, the contrary doctrine has been held to be the correct one, and adhered to wherever the question has been adjudicated. Henderson v. The State, 14 Tex. 503; Billings v. The State, 107 Ind. 77; 2 Bish. Crim. Law, sec. 543, and notes.
It has also been held, that he who signs the name of a person who had or has no legal capacity to make the instrument, is guilty of forgery. People v. Krummer, 4 Park. Crim. R., 217. And so, where the accused makes the false instrument by signing the name of a fictitious person thereto, he is guilty of forgery. I Bish. Crim. Law, sec. 572, and note 6; 2 Bish. Crim. Law, sec. 543, and note 5.
2. The check offered in evidence was objected to because fatally variant from that alleged in the indictment. This objection seems to be based *Page 78 upon bad handwriting, if we look to the original check. We are not authorized to do this, because it is not certified by the clerk, nor in any way identified as such original check (Carroll v. The State, 24 Texas Criminal Appeals, 313), but, if considered, we fail to see the supposed variance.
3. Defendant was not under arrest at the time he made the statements to the officers; therefore his objection on this ground was not well taken. The judgment is affirmed.
Affirmed.
Judges all present and concurring.