1. Practice — Bill of Exception as to Evidence. — A bill of exception which merely states that certain evidence was objected to, but which does not show that the evidence was permitted to go to the jury, is wholly insufficient.
2. Passing Forged Instrument — Allegation and Proof — Variance. — In an indictment for passing a forged instrument, when the instrument set out was a certificate signed by R., to the effect that he had sold a certain note which he held on one L., to one S., and both L. and R. testified that L. did not owe R. a note of any description, held, a fatal variance between the allegation and the proof.
3. Same — Indictment — Insufficient Averments. — A writing so imperfect and obscure that it is not intelligible without reference to extrinsic facts, will not support an indictment for forgery, unless these facts are averred, and by averment it is made apparent that it has the capacity of effecting fraud. Hendricks v. The State, 26 Texas Cr. App., 176. See this rule applied to an indictment for passing a forged instrument, held, fatally defective for want of sufficient averments.
DAVIDSON, JUDGE.
This conviction was for passing a forged instrument.
1. Two bills of exception recite that the State offered to prove certain facts. Objections interposed by defendant were overruled. The bills do not state, nor is it shown by them, the offered evidence was admitted to go to the jury. For this omission they are fatally defective. We can not look to the statement of facts to ascertain or determine this fact. Burke v. The State, 25 Texas Cr. App., 172; Jacobs v. The State, 28 Texas Cr. App., 79; Jackson v. The State, 28 Texas Cr. App., 143.
2. The evidence does not support the allegations of the indictment. The instrument declared on reads as follows, to-wit: "October 10, 1890. This is to certify, that I have sold the note I hold against H.A. Lacy to F.A. Simms. W.D. Russell." It is shown by the testimony of Russell and Lacy that Lacy did not owe Russell a note of any description. This constitutes a fatal variance.
3. We are further of opinion, that the indictment should have alleged directly, and not by way of inference, that H.A. Lacy had executed and delivered to W.D. Russell a note, setting it out, or was indebted to him on an account, as the case may be, and then assign the forgery upon the transfer of the instrument set out in the indictment and alleged to have been forged. Looking upon this indictment, it does not appear therefrom that the instrument upon which forgery is assigned created, increased, diminished, discharged, or defeated any pecuniary obligation, etc. Under this state of case, the rules laid down in Hendricks v. The State apply, and must be observed. Hendricks v. The State, 26 Texas Cr. App., 176; Shannon v. The State (Ind. Sup.), 10 N.E. Rep., 87; Hobbs v. The State, 75 Ala. 1; 1 Whart. Crim. Law, 8 ed., sec. 740; 2 Bish. Crim. Law, 7 ed., sec. 545. The judgment is reversed, and the prosecution dismissed.
Reversed and dismissed.
Judges all present and concurring.