Adkins v. State

• Decision Date: 28 February 1900
• Citation: 56 S.W. 63
• Parties: ADKINS v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

56 S.W. 63

ADKINS v. STATE.¹

Court of Criminal Appeals of Texas.

February 28, 1900.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Dave Adkins was convicted of forgery, and he appeals. Affirmed.

Green & Blanton, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of forgery, and his punishment assessed at two years' confinement in the penitentiary.

The indictment contains four counts, charging forgery, uttering a forged instrument, and having in possession a forged instrument with intent to pass it. The court submitted the first count in his charge to the jury, omitting the remaining three. This was proper.

The instrument was set out according to its tenor, as follows:

"$11.75. Gainesville, Texas, June 8th, 1899.

"Ninety days after date, for value received, promise to pay to Ed Liedtke or order eleven and 75/100 dollars, at his office in Gainesville, to bear interest at the rate of 10 per cent. per annum from date; and further hereby agree that, if this note is not paid when due, to pay all cost necessary for collection, including ten per cent. for attorney's fees.

                  "Due Sept. 8th
                    "[Signed]                   C. J. Stuard."
                

The note introduced in evidence was as follows:

"$11.75. Gainesville, Texas, June 8th, 1899.

"Ninety days after date, for value received, promise to pay to Ed Liedtke or order eleven and 75/100 dollars, at his office in Gainesville, to bear interest at the rate of 10 per cent. per annum from date; and further hereby agree that, if this note is not paid when due, to pay all cost necessary for collection, including ten per cent. for attorney's fees.

                  "Due Sept. 8th
                    "[Signed]                    C. J. Stuard
                    "C. J. Stuard, Era."
                

It is claimed there was a variance in this; that the instrument declared on has the name "C. J. Stuard" only once, whereas that offered in evidence has it twice, followed by the name "Era." As shown in the bill of exceptions reserved to the action of the court overruling the demurrer to the evidence, the words "C. J. Stuard, Era," were written below the note, and were not a part of the note. We do not understand this constitutes a variance. "Era" is the neighborhood in which he lived, as stated by him to the witness Liedtke at the time of the execution of the note. If this was simply a memorandum written by the witness Liedtke at the time, it did not form a part of the note, and it was not necessary to set it...