McNeese v. State

• Decision Date: 16 April 1980
• Docket Number: No. 58738,No. 1,58738,1
• Parties: Flemon V. McNEESE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 906

596 S.W.2d 906

Flemon V. McNEESE, Appellant, v. The STATE of Texas, Appellee.

No. 58738.

Court of Criminal Appeals of Texas, Panel No. 1.

April 16, 1980.

Johnny D. Gabriel, Jr., San Antonio, for appellant.

Bill M. White, Dist. Atty., Ed Springer, Larry A. Catlin and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of forgery. It was alleged that the appellant with intent to harm and defraud another possessed a forged instrument with the intent to utter it. The punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant asserts that the court erred in failing to quash the indictment, and that the evidence is insufficient to sustain the conviction because there is a fatal variance between the allegations of the indictment and the proof. The appellant also says the State failed to prove he knew the check was forged and that he had an intent to defraud another, essential elements of the offense.

The forged instrument was a check. The amount of the check stated in words was "One Hundred Twenty-Seven Dollars." The amount of the check stated in figures was "$127.90." In his motion to quash the indictment the appellant urged the ". . . check is therefore ambiguous and absent an innuendo averment to explain its true meaning the indictment is fatally defective and invalid." The appellant insists that his motion to quash was erroneously overruled. V.T.C.A. Business and Commerce Code, Sec. 3.118(3) provides that in construing commercial paper "Words control figures except that if the words are ambiguous figures control." The words on the check are not ambiguous and they would control as to the amount for which the check is drawn. There is no doubt that under the applicable commercial law it can be determined from the face of the check that it was drawn in the amount of One Hundred Twenty-Seven Dollars.

The appellant recites and relies on Lamb v. State, 67 Tex.Cr.R. 474, 148 S.W. 1088 (1912). In that case the amount of the check stated in words was "Fifty Cents and 75/100 Dollars" and the amount of the check stated in figures was "$50.75." Under the present code, which was not in effect at that time, the check would be construed to be in the amount of $50.75. However, the court in that case did not discuss the applicable law of negotiable instruments but said and held that:

"The indictment contains no explanatory averments, alleging for what amount the check was intended. The statute reads that any person is guilty of forgery who, with intent to defraud, shall make any false instrument in writing, purporting to be the act of another, in such manner that the false instrument would create a pecuniary obligation, and we have puzzled our brain trying to decipher what amount this check would create a legal liability for, and in the absence of any explanation we are not able to tell. Mr. Bishop lays down the rule that, if the writing is so incomplete as to have an apparent uncertainty, the indictment must allege such extrinsic facts as will enable the court to see, if genuine, its meaning. 2 Bish.Cr.Law, 545. This instrument is so uncertain on its face, in the absence of innuendo averments alleging its true meaning that the indictment should have been quashed, and the court erred in not so doing.

"The judgment is reversed and the prosecution dismissed."

Lamb v. State, supra, appears to be in conflict with our holding in the present case, and it is therefore overruled. The rules of construction of the Business and Commerce Code are clear and they determine the issue raised by the appellant's motion to quash. No innuendo averments or allegations need be made in the indictment. The check would have created a legal obligation of $127.00.

The appellant also cites and quotes from McBride v. State, 48 Tex.Cr.R. 213, 88 S.W. 237 (1905), but the opinion in that case gives no more support to appellant's argument than the opinion in Lamb v. State, supra. Cf. Robinson v. State, 148 Tex.Cr.R. 505, 188 S.W.2d 578 (1945) and Roberts v. State, 138 Tex.Cr.R. 39, 133 S.W.2d 974 (1939).

The trial court did not err in overruling the appellant's motion to quash the indictment.

In his second ground of error the appellant says:

"The trial court erred in holding the evidence sufficient to sustain the conviction when there was a material and fatal variance between the instrument set out in the indictment by its tenor and the instrument offered in evidence to support such description."

In his argument under this ground of error the appellant does not argue that there is a variance between the copy of the check set out in the indictment and the check offered in evidence. Rather appellant argues that the check when presented to the complainant did not have certain marks on it that were on it when it was offered in evidence. Since the argument does not support the ground of error and the authorities cited are inappropriate to the facts argued, no error is...