Summary
In Texas P. Ry. Co. v. Staggs, 90 Tex. 461, 39 S.W. 296, it was said: "If deceased was guilty of contributory negligence, his widow and children could not recover for failure to see him upon the track, or to discover his danger, because in such case their right of action would rest upon the negligence of the defendant, to which contributory negligence of the deceased would constitute a good defense."
Summary of this case from St. L., S.W. Ry. Co. of Texas v. WattsOpinion
No. 1265.
Decided February 24th, 1897.
1. Forgery — Allegations and Proof — Variance.
Where an indictment for forgery alleged, in the purport clause, that the forged instrument purported, to be the act, of L. V. T., and, as set out in the tenor clause, it was the act of L. V. T., and the instrument offered in evidence corresponded with the allegations and was signed L. V. T. But, the State introduced as a witness, one L. B. T., who testified, that he knew no L. V. T. in that community. Held: This did not constitute a variance.
2. Same — Fictitious Person.
Even if it be conceded that a difference in the middle initial of a name could constitute a variance, it would not aid defendant, because if L. V. T. was a fictitious person, the forgery of the name of a fictitious person would constitute the offense charged. Following, Johnson v. State, 35 Tex. Crim. 271.
APPEAL from the District Court of Johnson. Tried below before Hon. J.M. HALL.
APPEAL from a conviction of forgery; penalty, two years' imprisonment in the penitentiary.
No statement necessary.
No brief for appellant.
D.W. Odell, County Attorney, and Mann Trice, Assistant Attorney-General, for the State.
Appellant was convicted of forgery, and his punishment assessed at two years in the penitentiary, and prosecutes this appeal. The indictment charges that the alleged forgery purported to be of the name of "L.V. Truelove," and the tenor clause sets out the instrument, which also contains the name, "L.V. Truelove." The instrument as introduced in evidence corresponded with that set out in the indictment. On the trial the State introduced as a witness, L.B. Truelove, who testified he lived in the vicinity of Alvarado, and that he knew of no L.V. Truelove in that community. The fact that the State introduced testimony tending to show that no person bearing the name of L.V. Truelove lived in that neighborhood did not constitute a variance. If it be considered that L.B. Truelove was the person whose name was intended to be forged, and it be conceded that the difference in the middle initial would be a variance, still it does not occur to us that appellant can complain. The defendant could forge the name of a fictitious person, and the indictment need not allege that such person was fictitious; and, the proof showing that such a person as L.V. Truelove did not exist in that community, and was a fictitious person, forgery of such fictitious name would constitute the offense charged. See, Johnson v. State, 35 Tex. Crim. 271, and Chapman v. State (Tex.Crim. App.), 34 S.W. Rep., 621. We have carefully examined the proof in this case, which is of a circumstantial character, and, in our opinion, it is sufficient to sustain the conviction of forgery. The judgment is affirmed.
Affirmed.