In his motion for rehearing appellant insists that the evidence relied on by the State does not meet the rule demanded where circumstantial evidence is involved.
Upon original submission we were not favored with a brief for appellant and in the motion for rehearing and the brief and argument in support thereof our attention is called to some matters overlooked originally. We attached some significance to the evidence that when appellant was arrested there was found in his possession another check similar to the one declared on in the indictment. It is pointed out in appellant's motion that the evidence regarding this other check was withdrawn from the jury, and therefore, was not properly subject to our consideration.
The alleged forged instrument set out in the indictment bears no date other than may be inferred from the following notation, viz.: "12/31." There is no innuendo averment as to the meaning of the quoted figures. It is averred that the forgery was committed and that the passing of the instrument occurred on the 16th day of February, 1937. If it could be inferred that the quoted figures represented the month and day upon which the instrument purported to be executed it may have been on the 31st day of December, 1936, some six weeks prior to the time the instrument was passed. It will be noted that the instrument purports to be a cashier's check against the "Guarantee Bank Trust Co." of Houston, Harris County, Texas. It was passed in Gregg County. Outside of the circumstances attending the transaction the only evidence regarding the existence or nonexistence of any such bank is from a State Bank Examiner whose testimony is restricted to the point that there was no such bank in Houston on the 16th day of February, 1937, nor at the time of the trial. There is an entire absence of testimony as to whether any such bank was in existence in December, 1936, or at any time prior to February 16, 1937. No effort was made — or if made it is not shown — to collect the money on said check.
Under the circumstances stated we think the State failed to *Page 305 discharge the burden required to show the instrument declared on to have been a forgery.
The circumstances are suspicious but the State must go further in a case of circumstantial evidence than to raise a suspicion that the law has been violated. See authorities cited under Section 1877, of Branch's Ann. Texas Penal Code, and also the later cases of Rice v. State, 122 Tex.Crim. Rep.,53 S.W.2d 629; Moreland v. State, 126 Tex.Crim. Rep.,72 S.W.2d 273, and authorities therein cited.
Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.