Williams v. State , 164 Tex. Crim. 545 ( 1957 )

301 S.W.2d 107 (1957)

J. G. WILLIAMS, Appellant,
v.
The STATE of Texas, Appellee.

No. 28967.

Court of Criminal Appeals of Texas.

April 17, 1957.

Terry, Martin & Bonilla, Walter Groce, Corpus Christi, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is forgery by alteration; the punishment, two years.

The instrument in writing upon the back of which appellant was alleged to have endorsed the name "Red McCombs BJMc" is set out in the indictment according to its tenor as follows:

"Corpus Christi, Texas        6-27-1956      Number 500
"Corpus Christi Bank & Trust Co.                   77-128
-------
1141
"Corpus Christi, Texas
"Pay to the order of Red McCombs                     $50.00
"Fifty and no/100    Dollars
"M & S
"J. G. Williams"

Over objection pointing out the variance between the check offered in evidence and the instrument set out in the indictment, State's Exhibit 1 was admitted which reads:

"Corpus Christi, Texas        6-27-1956      Number
500
"Corpus Christi Bank & Trust Co.            88-128
------
"Corpus Christi, Texas                    1141
"Pay to the order of Red McCombs                  $50.00
"Fifty and No/100 ...................... Dollars
"M. & S. Loans
"J. G. Williams."

The variance between the check signed "M & S Loans J. G. Williams" and the instrument alleged according to its tenor bearing the name "M & S J. G. Williams" as maker is apparent.

There is also a variance between the number 88-128 in the Exhibit and the number 77-128 which appears in the instrument set out in the indictment, but we need not pass upon whether the latter variance would alone be fatal.

Where the instrument alleged to be forged is set out in the indictment according to its tenor the writing offered in evidence must conform thereto with almost minute precision. Branch's Ann.P.C., 2d Ed., Sec. 1588, and cases cited.

The rule applies where the forgery alleged is the endorsement, the entire instrument so altered by forged endorsement of the name of the payee being a forged instrument. Branch's Ann.P.C., 2d Ed., Sec. 1598.1 and cases cited.

Because of the variance mentioned the evidence is insufficient to sustain the conviction.

The judgment is reversed and the cause remanded.