DAVIDSON, Commissioner.
Attempting to pass a forged check is the offense; the punishment, five years in the penitentiary.
The count in the indictment upon which this conviction rests charges that appellant, knowing it to be forged, attempted to pass a forged check to one Smith.
All the testimony shows that the check was presented and attempted to be passed to one Brown, who was an employee of the store of which Smith was the assistant manager.
This constitutes a fatal variance between the allegations of the indictment and the proof. Brown v. State, 71 Tex.Crim. 45, 158 S.W. 533; Crisp v. State, Tex.Cr.App., 163 S.W.2d 209.
The State's Attorney before this Court concedes the variance.
The judgment is reversed and the cause is remanded.
Opinion approved by the court.