Martini v. State

371 S.W.2d 387, 1963 Tex. Crim. App. LEXIS 975

• Court: Court of Criminal Appeals of Texas
• Decided: June 26, 1963
• Docket: 35186
• Status: Published

Opinions

McDonald, judge.

The offense is misdemeanor swindling with a worthless check, with a prior conviction for an offense of like nature alleged for enhancement; the punishment, one and one-half years in jail and a fine of $500.00.

The witness Castillo testified that on the day in question appellant came to the filling station where he was employed, bought $2.00 worth of gasoline, and gave him a check in the sum of $20.00 and received the balance in cash. He testified that he asked appellant if the check was good and received an affirmative reply. On cross examination, the witness admitted that he may have received the check two days before the date noted thereon but said that he paid no attention to the date appearing on the check at the time he accepted it. The date on the check, introduced in evidence, appears to have been altered, but there is no evidence as to when or by whom such alteration was made. Neither party testified as to what date the check bore at the time it was passed.

Appellant, testifying in his own behalf, admitted the prior conviction but stated that at the time he gave Castillo the check upon which this prosecution is based he told him that he had no money in the bank but would come by in a few days and pick up the check. He stated further that he did return to the filling station on two occasions in an effort to pay off the check but that Castillo was not present at the station on the first occasion and on his second visit Castillo told him that the company had deposited the check. His testimony as to the first visit was corroborated by the witness, Alejandro, who was also employed at the filling station and who stated that appellant came by, asked for Castillo, and then asked if they had a check of his and Alejandro looked in the “drawers” and could not find one.

Appellant’s attorneys testified that they had a conversation with Castillo prior to the trial and that he had told them appellant had given him the check in question on Saturday and he had promised to hold it for him until Monday. The jury were told in the court’s charge to acquit if they believed this defense.

It was shown that appellant had not had an account in the bank on which the check was drawn since 1957.

We find the evidence sufficient to support the conviction and, though no brief has been filed on behalf of appellant, we will discuss the questions raised in the record.

Appellant requested a charge directing an acquittal if the jury believed that the check was given on November 4 and dated November 6. Carter v. State, 150 Tex.Cr.R. 448, 203 S.W.2d 540, is authority for the denial of such a charge.

If in fact there is a variance between the allegation in the indictment that appellant received $2.00 worth of gasoline and the proof that he received gasoline of the value of $2.67, such is not fatal. Parker v. State, Tex.Cr.App., 342 S.W.2d 764.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment of the trial court is affirmed.