Opinion
No. 30713.
May 13, 1959.
Appeal from the 102nd Judicial District Court, Bowie County, James R. Hubbard, J.
No attorney of record on appeal for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for passing as true a forged instrument; the punishment, two years.
The appellant was identified at the trial as the person who passed the check in question to J. E. Hegler; and said check was introduced in evidence. The check was in the sum of $27, with the name Horace E. Crew signed thereto as maker; and it was returned to Hegler unpaid. The testimony sufficiently shows that Horace E. Crew was a fictitious person.
Appellant did not testify or offer any testimony in his behalf.
Appellant contends that there is a fatal variance between the instrument set out in the indictment and that passed to J. E. Hegler. The variance consisted of certain notations which the testimony shows to have been apparently placed on the check by the bank when it was presented for payment.
The testimony shows that the notations were no part of the check when it was passed to Hegler, hence the variance is immaterial. 3 Branch's Ann.P.C.2d 730, Sec. 1588; Rice v. State, 123 Tex.Crim. R., 58 S.W.2d 98; Anderson v. State, 144 Tex.Crim. 26, 161 S.W.2d 88.
The judgment and sentence finding appellant guilty of forgery and passing a forged instrument are reformed to show him guilty of passing a forged instrument in accordance with the record; and the evidence being sufficient to support the conviction and no reversible error appearing, the judgment as reformed is affirmed.
Opinion approved by the Court.