Witting v. State
This text of 375 S.W.2d 719 (Witting v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The appeal is from a conviction with punishment assessed at two years for violation of Art. 567b, Vernon’s Ann.P.C., commonly known as the hot check law.
The indictment alleged, and the court’s charge required the jury to find, in order [720]*720to convict, that the appellant obtained mohair of the value of $5,046.90 by drawing and delivering to W. 'L. McGinley a check in that amount with intent to defraud McGinley, knowing that he did not have sufficient funds in the drawee bank.
The evidence reflects that the mohair was delivered on June 25, 1960, 12 days before the check set out in the indictment was dated and delivered.
It is evident that the mohair was not procured by the delivery of the check as charged in the indictment.
The state does not seek affirmance of the conviction because of the variance between the allegations in the indictment and the proof. Nesbit v. State, Tex.Cr.App. 374 S.W.2d 666; Norman v. State, Tex.Cr.App., 338 S.W.2d 714.
The judgment is reversed and the cause is remanded.
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Cite This Page — Counsel Stack
375 S.W.2d 719, 1964 Tex. Crim. App. LEXIS 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witting-v-state-texcrimapp-1964.