Rice v. State, 44954

• Decision Date: 14 June 1972
• Docket Number: No. 44954,44954
• Parties: Chester Roland RICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 589

484 S.W.2d 589

Chester Roland RICE, Appellant, v. The STATE of Texas, Appellee.

No. 44954.

Court of Criminal Appeals of Texas.

June 14, 1972.

Rehearing Denied July 28, 1972.

Jack Miles, Darryl G. Campbell, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Sam Robertson, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for passing a forged instrument. After appellant was found guilty by a jury, punishment was assessed by the court at four years.

Appellant contends that the court erred in refusing to grant an instructed verdict in that the evidence was insufficient to sustain the conviction.

The instrument alleged to have been passed by appellant reads as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

A check of this tenor was introduced into evidence bearing the endorsements 'Gary Bolinger' and 'C. R. Rice.' Mrs. Jean Gianopulos, an employee of the South Main Bank, Houston, identified the check as having been presented to her for payment by appellant and as having been endorsed by appellant in her presence. Mrs. Gianopulos further identified State's Exhibit 2, a check of the same tenor as the one upon which the indictment is based, except that it bears the date of October 11, 1968, and is in the amount of $205.00. It too was presented to her for payment by appellant and was endorsed by appellant in her presence. Other employees of the South Main Bank identified State's Exhibits 3 (a check for $405.00, dated Nov. 1968), 4 (a check for $525.00, dated Oct. 26, 1968), and 5 (a check for $205.00, dated Oct. 8, 19--) as checks drawn on Seaback-Rice Co., made payable to Gary Bolinger and presented at the South Main Bank for payment by the appellant. In State's Exhibits 3 and 5, Mrs. Harry Seaback signed for the maker, Seaback-Rice Co. Exhibit 4 is signed by appellant for Seaback-Rice Co.

In each instance, appellant endorsed the check, after appearing at the bank, below the endorsement of the payee, Gary Bolinger.

Witness Seaback testified that he and appellant were in business together, each owning fifty per cent of the company, ¹ and that appellant had authority to sign checks on the company account. He further testified that the signatures 'Mrs. Harry Seaback' on State's Exhibits 3 and 5 were the signatures of his wife; that his wife had helped the bookkeeper and that appellant would turn in the payroll and would instruct Mrs. Seaback whom to write the checks to.

Garry Bollinger testified he knew appellant, having worked for appellant seven or eight months when he was building town houses for Norman Enterprises in Houston. Witness Bollinger further testified that he moved back to Missouri in June or July of 1968, and that he never worked for Seaback-Rice Company. Bollinger denied having ever seen any of the checks in question until they were shown to him by an investigator and stated that he did not authorize anyone to endorse the name Gary Bolinger on the checks. The witness testified that he spelled his name Bollinger and not Bolinger as appears on the checks.

There is no dispute concerning appellant's signing the check in question as the maker. Further, it is undisputed that he had authority to sign checks on the company account.

There is no conflict in the testimony regarding appellant endorsing the check, when it was presented for payment at the bank.

This Court has required exact correspondence between the names of the parties as contained in the indictment for forgery and the names as contained in the instrument on which proof of the indictment is predicated. See generally 25 Tex.Jur.2d Forgery, Section 65, p. 585. In Payne v. State, Tex.Cr.App., 391 S.W.2d 53, where the indictment alleged an endorsement by Howard E. Kinded and the evidence showed an endorsement by Howard E. Kindred, we noted this to be a fatal variance. In the present case, however, the name in the indictment and in the proof (the endorsement on the instrument) exactly corresponded: Gary Bolinger.

The question we must determine is whether Gary Bolinger (with only one '1' in the last name) appearing in both the indictment and the proof is the same person as the Gary Bollinger (with two '1's' in the last name) who testified that he worked for the appellant some seven or eight months, that he had never seen the checks until shown to him by the investigator, and that he did not authorize the signature of Gary Bolinger on the check.

On direct examination, Bollinger was shown a check with the name Gary Bolinger on it and asked if he saw his name on the check. He answered: 'Yes, sir.' Later he stated that 'the name is spelled wrong.' On cross-examination, when asked if the name on the check was his, he answered: 'That is the way some people spell my name, that is not the correct spelling of it, no.' He further testified on cross-examination that it was possible that there could be another Mr. Bolinger but that he knew of no one with that name working with the appellant. He stated that he did not know all the...