Anderson v. State ( 1942 )

Appellant was assessed a penalty of two years in the penitentiary for the offense of forgery, it being alleged that he forged the name of his mother-in-law, Mrs. Emma Parker, to a check in the sum of sixty dollars, dated March 26, 1941.

Only one question is presented on the appeal. The indictment alleged the check in haec verba. When the check was introduced in evidence it contained, in addition to the things alleged in the indictment, the following printed memorandum: "When written in ink this check is insured against fraudulent alteration. The bank is not responsible for pencil written checks."

Based on this it is contended there is a fatal variance between the allegation and the proof. We are not in accord with this contention.

The distinction made between the two lines of cases, one holding that there is a variance and those that are distinguishable under the facts are not always easily discovered. The test seems to be: Would the allegations contained in the indictment be sufficient and contain all of the terms and conditions of the check without the additional matter? Further, notations made after the passing of the check, endorsements, revenue stamps and memoranda, together with monograms, etc., which constitute no part of the forgery relied upon need not be set out in the indictment and need not be proven, yet if they do appear in the record they constitute mere surplusage and unnecessary matter which are not effective to vary the evidence from that alleged in the indictment. Branch's Ann. P. C. Sec. 1397; DeAlberts v. State, 34 Tex.Crim. Rep., 31 S.W. 391; Beer v. State, 42 Tex.Crim. Rep., 60 S.W. 962; Davis v. State,156 S.W. 1171; Hancock v. State, 57 S.W.2d 111.

Contention is also made that the accused was authorized to sign his mother-in-law's name to the check. Both he and his wife so testified. The mother-in-law emphatically denied this and gave indication of a series of disagreements and bad feeling between herself and the son-in-law substantiating her statement. The case is not a favorite one for the criminal courts, inasmuch as it appears there was ample opportunity for the settlement of all their differences in the civil court. However, under the jury's finding, appellant resorted to a method of securing his wife's portion of her father's estate which is not approved by the penal laws and he cannot complain that he must suffer the consequences.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.