Cofer v. State

• Decision Date: 04 May 1927
• Docket Number: (No. 10807.)
• Citation: 295 S.W. 189
• Parties: COFER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 189

295 S.W. 189

COFER v. STATE.

(No. 10807.)

Court of Criminal Appeals of Texas.

May 4, 1927.

Rehearing Denied June 8, 1927.

Appeal from District Court, Wilbarger County; Robert Cole, Judge.

Mon Cofer was convicted of knowingly passing as true a forged instrument, and he appeals. Affirmed.

Warlick & Poteet, of Vernon, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is forgery; punishment fixed at confinement in the penitentiary for a period of three years.

The alleged forged instrument reads thus:

"Bank Ex. $25.00. Vernon, Texas, April 9, 1926. Pay to order of T. H. Martin, $25.00. W. R. Antle — Cotton — Vernon, $25.00 and 00 cts. Value received and charge to account of W. R. Antle & Co., by W. R. Antle. To T. H. Martin for cotton."

The evidence shows that the appellant presented the document to J. G. Robertson, who was in charge of Levine Bros.' store. Robertson O. K.'d the check and the cashier gave the appellant $25 on it. On the back of the check, as introduced in evidence, appears the indorsement:

"Pay to the order of the Farmers' State Bank, Vernon, Texas. Levine Bros. The People's Store."

We gather from the motion for new trial that the appellant's contention is that because the indorsement not being set out in the indictment, the fact that it appears on the instrument as introduced in evidence constitutes a variance. The indorsement we understand is not a part of the instrument. See Cobb v. State, 105 Tex. Cr. 81, 286 S. W. 1086; Branch's Ann. Tex. P. C. p. 860; Hennessy v. State, 23 Tex. App. 354, 5 S. W. 215; Davis v. State, 70 Tex. Cr. 253, 156 S. W. 1171. See, also, 2 Vernon's Tex. P. C. 1925, art. 979, notes 16, 17, and 18; Robinson v. State, 35 Tex. Cr. 54, 43 S. W. 526, 60 Am. St. Rep. 20; Beer v. State, 42 Tex. Cr. 505, 60 S. W. 962, 96 Am. St. Rep. 810; Cox v. State, 92 Tex. Cr. 497, 244 S. W. 605.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Our attention is called to the fact that we inadvertently stated in our original opinion that appellant was convicted of forgery when the conviction, in fact, was for knowingly passing as true a forged instrument. The original opinion has been corrected in this regard.

It is insisted that the evidence is insufficient to support the finding that appellant knew the instrument he passed was forged. He was in possession of and passed a check which was unquestionably a forgery. When the party to whom he passed it made a suggestion that appellant must have gotten it in a poker game, he adopted the suggestion, and said that was where he...