Edgerton v. State
| Decision Date | 22 October 1902 |
| Citation | 70 S.W. 90 |
| Parties | EDGERTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Potter county; H. H. Wallace, Judge.
W. Edgerton was convicted of forgery, and appeals. Reversed.
L. C. Barrett and J. S. Bailey, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted for uttering a forged instrument in writing, and his punishment assessed at confinement in the penitentiary for a term of two years. Appellant made a motion to quash the indictment on the ground that where the forged instrument was accessible it should be set out according to its tenor. Here the indictment alleges "that said false instrument is to the tenor substantially as follows, to wit." We understand that tenor imports an exact copy, and requires the strictest proof. Baker v. State, 14 Tex. App. 332; Roberts v. Same, 2 Tex. App. 4. "Substantially" we understand to mean not an accurate or exact copy, but one which embodies or contains the substance of the instrument. These terms are antagonistic, and are tantamount to saying that the instrument set out in the indictment is a substantial copy of the one forged. It has been held that to allege "the instrument is in substance to the effect, as follows, to wit," is bad. So we hold that to allege that the instrument set out is substantially an accurate copy is bad.
Appellant further contends that there is a variance between the allegation and proof as to the instrument set out in the indictment. The indictment in the copy of the instrument contains the words "for labor." The record shows that the instrument which was introduced contained, instead of "labor," "labobor." In this connection the clerk has sent up, as a part of the record, the original instrument which was introduced in evidence. An inspection thereof shows that the word in the instrument may be spelled "labobor" or "labolos" or "labobos," but not "labor." In our opinion there was a variance, and the instrument should not have been introduced under the allegation in the indictment.
It is not necessary to discuss other matters presented, but for the defect in the indictment heretofore pointed out the judgment is reversed, and the prosecution ordered dismissed.
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