Porter v. State , 158 Tex. Crim. 237 ( 1952 )

BEAUCHAMP, Judge.

The appellant was assessed a fine of $100.00, with a jail sentence of 30 days, on a charge of swindling by giving a check on a bank in which he did not have funds sufficient to pay the amount.

The appeal is based chiefly on the contention that there is a variance in the complaint, for which reason the motion to quash should have been sustained.

The check in question was given to The Great Atlantic & Pacific Tea Company for $22.50. It was written on a form furnished by the company, in which the payee’s name was printed and the name of the bank was left blank. The complaint alleges that it was on the Lakewood State Bank and then copies the check in which the name of the bank appears as “Lakewood Bank.”

In view of the evidence developed in the case, we know of no other way the complaint could have been drawn. It is sufficient to allege that the intended bank was Lakewood State Bank and that, following the custom generally prevailing, he wrote in the name “Lakewood Bank.” The evidence shows conclusively that there is no such bank and the pleader was correct in alleging that it was drawn on the Lakewood State Bank. Had it not been so charged the necessary proof in the case would have been at variance from the complaint. We have considered the authorities cited by appellant and fail to find any comfort in them for the question here considered.

Another ground upon which a reversal is asked is because of a statement of the assistant district attorney to the jury in his argument. He expressed the opinion that this was an aggravated case. In as much as the evidence shows that the check was deliberately given on a bank in which the accused knew he had no funds, it is distinguished from one in which the drawer of the check does have an account but recklessly draws a check over and above the amount he has on deposit. The facts justify the statement made by the prosecution.

We find no other matter requiring consideration and the judgment of the trial court is affirmed.