Opinion
No. 20727.
Delivered January 3, 1940.
Forgery — Indictment — Variance.
Where, in the purport clause of indictment for forgery, it was alleged that accused made a false instrument in writing purporting to be the act of "J. E. Masters, Sr.," and the alleged forged instrument, as set out in the indictment, was signed "Edd Masters," and indictment embraced no innuendo averments explaining the connection between the two names, variance between the purport and tenor clauses of the indictment was fatal.
Appeal from District Court of Falls County. Hon. Terry Dickens, Judge.
Appeal from conviction for forgery; penalty, confinement in penitentiary for two years. Reversed and prosecution dismissed.
The opinion states the case.
Bartlett Bartlett, of Marlin, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is forgery; the punishment, confinement in the penitentiary for two years.
There is a fatal variance between the purport and tenor clauses of the indictment. In the purport clause it is alleged that appellant made a false instrument in writing purporting to be the act of J. E. Masters, Sr. The alleged forged instrument, as set out in the indictment, is signed "Edd Masters." The indictment embraces no innuendo averments explaining the connection between J. E. Masters, Sr., and Edd Masters. See Simms v. State, 32 S.W.2d 852. The State's Attorney before this Court confesses error.
The judgment is reversed and the prosecution ordered dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.