Witting v. State , 1964 Tex. Crim. App. LEXIS 860 ( 1964 )

WOODLEY, Presiding Judge.

The appeal is from a conviction with punishment assessed at two years for violation of Art. 567b, Vernon’s Ann.P.C., commonly known as the hot check law.

The indictment alleged, and the court’s charge required the jury to find, in order to convict, that the appellant obtained mohair of the value of $5,046.90 by drawing and delivering to W. 'L. McGinley a check in that amount with intent to defraud McGinley, knowing that he did not have sufficient funds in the drawee bank.

The evidence reflects that the mohair was delivered on June 25, 1960, 12 days before the check set out in the indictment was dated and delivered.

It is evident that the mohair was not procured by the delivery of the check as charged in the indictment.

The state does not seek affirmance of the conviction because of the variance between the allegations in the indictment and the proof. Nesbit v. State, Tex.Cr.App. 374 S.W.2d 666; Norman v. State, Tex.Cr.App., 338 S.W.2d 714.

The judgment is reversed and the cause is remanded.