The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
In the indictment it is charged that the appellant passed a forged check for four dollars at Naylor’s Cash Store. The indictment is assailed upon the ground that it is indefinite in failing to describe in more specific terms the recipient of the forged check. It is very plausibly argued that the term “Naylor’s Cash Store” is not a very specific designation. Whether in an indictment charging the passing of a forged instrument it is necessary to state to whom the passing was made is a matter upon which the authorities in the various states of the Union are in conflict. This will be illustrated by the original and dissenting opinions in the case of State of Iowa v. Weaver, 128 N. W. 559 , 31 L. R. A. (N. S.) 1046, which is accompanied by copious citations of cases in the notes. See also Ency. of Pleading and Practice, Vol. 9, p. 591; Bishop’s New Crim. Proc., Vol. 3, p. 1506, sec.-447; 12 Ruling Case Law, p. 155, sec. 19. In this state, so far as the writer is aware, the sufficiency of an indictment omitting the averment mentioned has never been before the court, Willson’s Crim. Forms,
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4th Ed., p. 217, sec. 414, indicates that the averment should be made, and this seems to have been the practice in this state as is shown in Huntly v. State, 34 S. W. 923 ; Riley v. State, 44 S. W. 498 ; Lasister v. State, 94 S. W. 233 ; Morris v. State, 106 S. W. 384 ; Heimes v. State, 129 S. W. 124 ; Brown v. State, 158 S. W. 535 .
In Riley’s case, supra, it seems that the indictment charged the passage of a check to Charles Lowndes, who appears to have been the cashier of the First National Bank of Amarillo. The check was presented at the bank, but there a question of fact as to whether it was paid by Fuqua or by Lowndes, and the case was reversed because of the failure to submit that question to the jury. It is stated in the opinion by way of dicta that if the allegation had been that the check was uttered to the First National Bank of Amarillo, the averment would have been sustained by proof that it was cashed by either Lowndes or Fuqua. Persuasive of the accuracy of the views last expressed in the opinion mentioned are the following cases: Brown v. State, 60 Tex. Cr. R. 505 ; Reeseman v. State, 59 Tex. Cr. R. 430 ; Gumpert v. State, 229 S. W. 328 . Upon investigation of the subject, the conclusion is stated that in this state it is necessary for an indictment charging the uttering of a forged instrument to contain an averment identifying the transaction (Peterson v. State, 25 Tex. Cr. App. 70), and that in the present instance the averment that the check was passed to Naylor’s Cash Store was sufficient. The belief is also expressed that the commission of the offense is supported by proof that the check was passed to an employee or the owner of Naylor’s Cash Store. For the purpose of such an indictment, Naylor’s Cash Store would be treated as a business institution. Whether it be a corporation, partnership or the property of a single individual would necessitate no further averment than as above stated.
The other points raised in the motion have been fully discussed and properly disposed of in the original opinion.
The motion for rehearing is overruled.
Overruled.