From Casetext: Smarter Legal Research

Mayers v. the State

Court of Criminal Appeals of Texas
Feb 22, 1905
85 S.W. 802 (Tex. Crim. App. 1905)

Opinion

No. 3245.

Decided February 22, 1905.

Forgery — Indictment — Variance.

Where in the purport clause of the indictment the instrument is charged to be the act of Gay Simpson and when the instrument is set out according to its tenor, it appears to be signed by Mayer and Simpson, the variance is fatal in an indictment for forgery.

Appeal from the District Court of Erath. Tried below before Hon. W.J. Oxford.

Appeal from a conviction of forgery; penalty, two years' imprisonment in the penitentiary.

The opinion states the case.

Nugent Carter, for appellant.

Howard Martin, Assistant Attorney-General, for the State.


Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal. An examination of the indictment discloses that it is insufficient. The pleader attempted to set out the alleged forged instrument according to its purport and tenor. In the purport clause the instrument is charged to be the act of Gay Simpson. When the instrument is set out according to its tenor, it appears to be signed by Mayers and Simpson. This is a variance, according to the authorities, between the purport and tenor clauses, and is fatal to the indictment. Campbell v. State, 32 S.W. Rep., 899; Fite v. State, 34 S.W. Rep., 921; Stephens v. State, 37 S.W. Rep., 425; Gibbons v. State, 37 S.W. Rep., 861; Crayton v. State, 7 Texas Ct. Rep., 973. It is not necessary to discuss other propositions. Because the indictment is insufficient, the judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.


Summaries of

Mayers v. the State

Court of Criminal Appeals of Texas
Feb 22, 1905
85 S.W. 802 (Tex. Crim. App. 1905)
Case details for

Mayers v. the State

Case Details

Full title:H.A. MAYERS v. THE STATE

Court:Court of Criminal Appeals of Texas

Date published: Feb 22, 1905

Citations

85 S.W. 802 (Tex. Crim. App. 1905)
85 S.W. 802

Citing Cases

Whitehead v. State

We have made a very careful examination of the statement of facts in this case and after so doing we are…

The People v. Nickols

); State v. Horan, 64 N.H. 548, 15 A. 20; Dana v. State, 2 Ohio St. 91; State v. Houseal, 4 S.C.L. 219; State…