Apple v. State

392 S.W.2d 133

• Court: Court of Criminal Appeals of Texas
• Decided: June 26, 1965
• Docket: No. 38394
• Status: Published

Opinion

WOODLEY, Judge.

The offense is forgery by alteration; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The indictment alleged and the evidence, including the confession of the appellant, shows that appellant altered an American Express Company money order for the sum of “I Dols 70 Cts” by inserting the numeral 7 so as to make the instrument falsely appear as being in the sum of “$71 Dols 70 Cts.”

The money order introduced in evidence was identified from the code number and other writings thereon as that sold by a pharmacist in the amount of $1.70. The pharmacist testified that it had been altered from its original tenor of $1.70 so as to appear as $71.70, thus creating an added liability of $70.00 to the American Express Company.

Appellant and his counsel in open court entered into stipulation agreeing to the truth of the allegations of the indictment as to the two previous convictions.

The contention urged by appellant’s court appointed counsel on appeal, that there is a fatal variance between the allegations in the indictment and the proof, is predicated upon the fact that the indictment alleged that appellant altered the money order “by insertion of the numeral ‘7’ in front of the num&erals ‘1.70’,” whereas the instrument set out in the indictment shows that prior to being altered the amount was “I Dols 70 Cts.” and the evidence shows that the numeral “7” was inserted in front of “I Dols 70 Cts.”

The indictment was not attacked by exception or motion to quash and we find no material variance.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.