’ Apr. **2, 1947** 

Hon. Sam 3%.Hall Prosecuting Attorney Harrison County Marshall, Texas

~, $,

Dear Sir: **R-299**

Opinion No. V-121 Re: Has the offense of forgery been committed when the marginal figures on avalid check have been altered but the written words in the body of the check remain unchanged, and payment of the check is made in accordance with the marginal figures?

Your latter ofMarch 29. 1947, requesting an opinion of this deprtsneat **aa**towhether or not the offenee offorgery has been committed under the facts submitted, has been considered by this IkyWbment. W&r the facts submitted, adefendant took avalid &eck for $4.80, Placed afigure 5before the figures $4.80, and obtained the amount 

### fbf$54.80 whea fie cashed this check. You also state th8t the ameuht written inthe body of the check was $4.80 made **by** a cbcck protector **aad**that this amount was not altered. The photostatic copy **of**the check shows the amount written inthe body ofthe instrument to be clear and certain and in the amount of “4 doIs 80 cts.e

Article 984, Vernon’s Penal Cede, provides:

~ **“He** 2s also guilty offorgery who, without lawful authority, and with iritentte **injure** or defraud, shall alter aa **ia*trwnent** is writing then already in existtence, by whomsoever made, in such manner that the alteration would (if ithad been legally made) ,have created, increased, diminished, discharged or de’- feated any pecuniary obligation, ‘orwould have transferred, or in any manner have affected any property whatever.* Artiale 9g7, Vernon’s Penal Code, defines the word “alter” as used, inthe **above** statute.

*The word ‘alter’)~inthe definition of forgery, meana te erree, 0’1:obliterate any word, letter orHon. Sam B. Hall, Page 2 Opinion No. V-121
figure, to extract the writing altogether, or to substitute other words, letters or figures for those erased, obliterated er extracted, to add any other word, letter or figure to the original instrument, or to make any other change whatever which shall have the effect to create increase dim&?ish disThe Negotiable Instruments Law was adopted by Texas in 1919and is found inArticles 5932-5948, Vernon’s Civil Statutes. We think that part of itwhich has to dowith the construction ofthe instrument before us is pertinent. Article 5932, Sec. 17, provides:

“1. Where the sum payable is expressed in words and also in figures and there is adiscrepancy between the two, the sum denoted by thewords is the sum payable; but ifth@’w&r& are ambrguous or uncertam, reference may be Ii&Hto the figures to fix the amount;
. . .W It appears from a reading of the above provision that the only time reference may be had to the figures ona negotiable instrument is when the words denoting the amount are ambiguous or un&ertain, Inthe case before us the words are written by check protector and are clear and unambiguous.

We have been unable to find a Texas case inpoint, butwe 

### have found several cases containing identical fact situations decided by other jurisdictions.

In 37 C.J.S. 41, we find the following statement: “An alteration ef marginal figures on an instrument inwhich the amount payable is plainly expressed inwords is not a forgery, but there is some authority apparently to the contrary.w The earliest case cited is the chse of Commonwealth v. Hide, 23 S. W. 195. This is a 

### case by the Kentucky Court of**Appeals** decided in 1093. This case involved a check originally inthe amount of seventy cents. However, the figure 3was inserted between the dellat mark **and**the figures 70 inthe upper margin of the check, thus making itappear to be a check for $3.70, although the amount was written “Seventy Cts. ’ inthe body of tke check **ahd**this writing was unaltewd. The Court used the following language inthis case:

“‘Clearly, the writing was a forgery, and the indi&nenf in apt terms, charged the defendant with theHon. Sam B. Hall, Pege, 3 ~OpinionNs. V-I221

crime. Itis certrinly not necessary that the whole instrument should be made false @r fictitious. Making an alteration or erasure in any material part of atrue instrument, whereby another may be defrauded, is aforgery. This check, ina material - andwe may say aprominent - part, was altered; and itdoes not matter that the word ‘Seventy Cts.” remained as written, or that by close observation the merchant could have detected the forgery, and prevented the confirmation ofthe fraud.” Another case involving a similar fact situation was the case ofWilson v. State, decided by the Supreme Court ofMississippi in 1905, and reported in 38 So. 46. Inthis case, the figures inthe upper right hand corner ofthe draft were altered from $2.56 to $12.50, but the words “Two and 50/100 Dollars” were written in the body ofthe instrument andwere unchanged. **Also,** the words “Ten Dollars or Less” were stamped across the face ofthe draft. The court inthis opinion reached the conclusion that the alteration was not forgery, and in so doing, used the following language:

“This was not forgery, because itwas an immaterial part ofthe paper, andbecause it could not possibly have injured anybody. In order to constitute the crime there must not only be the intent to co-it it, but also an act of alteratien done to amaterial part, so that injury might result.” The court further states:
.e

. o*itmust have been capable ofworking injury if ithad been genuine, and that the marginal numbers and figures are not part ofthe instrument, and their alteration is not forgery.* This case cites the Texas case ofAnderson v. State, decided by the Court ofAppeals sf Texas in 1886 and reported in 20 Tex. App. 595. This Texas case involved a conviction for forgery of an order for goods, and was net an analogous fact situation. However, this language by the Court does appear to be important:

“To constitute forgery, the instrument forged must be such an one that, ifitwere true, would create, increase, diminish, dasch@rge~efeat ape- .,,_,, curnary obligation, or would transfer or rnsome manner affect property.’ (Emphasis added.) The next case is the case of State v. Latono, decided by the Supreme Court ofAppeals ofWest VirginirP in 1907 and reported inHon. Sam B. Hall, Page 4 Opinion No. V-121

58 S. E. 621. This case involved a check which was in the amount of $2.70 originally and was raised to $20.70 in the marginal figures. However, the body ofthe check contained the writing “Two and 70/100 Dollars” and this was not altered. The Court inthis case reached the conclusion that this alteration was not forgery and used the following reasoning:

“The test is the legal effect of the change or alteration, not whether someone may be misled or deceived by the paper. Here the only change was inwhat are called in some cases the ‘marginal figures,’ which, while they might mislead one who should fail to observe the body ofthe instrument, could not change or affect the legal status ofthe party, or tend in legal effect to prejudice another”s right. The alteration ofthe check inthis case did not deceive the Bank, and its legal effect was not changed. The materiality ofthe alteration is a question of law for the courts upon the admissibility ofthe altered instrument in evidence; and the alteration being shown, nothing remained for the jury to pass upon. . . . “Was the alteration of the figures inthe check a material one? We think not. It is true the figures follow the words inthe body ofthe check denoting the sum called for, as is frequently the case, and are not strictly mart+; but we do not think they form a material part of the paper. They are for ready reference, as ifwritten at the top or in the margin, and for convenience. They are not controlling, and do not change the legal effect ofthe paper. The words are the controlling portion, and the figures constitute no material part ofthe instrument. We are cited to only one case which shows the contrary, Commonwealth v. Hide, 94 Ky. 517, 23 S.W. 195. That case stands alone, unsupported, andwe do not think it states the law correctly.” The next case we consider is the case ofMcIntosh v. State, decided by the Court ofAppeals of Georgia, Division No. 2 in 1919and reported in 98 S. E. 555. Inthis case, the defendant forged a draft by altering and raising the figures and numerals on this draft originally in the sum of $2.60, to the figures and numerals, $57.60. The Court inthis case cited the Lotono, Hide and Wilson cases and concluded:

“From the foregoing opinion, it appears that before the alteration ofa check or adraft can be theHon. Sam B. Hall, Page 5 Opinion No. V-121

basis of aprosecution for forgery, the change must be such that~itwould affect the ‘legal liability ofthe parties inan action onthe instrument. ’ Itis well established that when theamount of a check is expressed both inwords and figures, and there is a conflict between the two, theamount stated inthe words control.

. . applying the above rule to the fact as alleged inthe indictment inthe instant case, it follows that the change inthis check upon which the prosecution inthe instant case was based, was not material,

. . .* The next case to be considered is the case of People v, Lewinger, decided by the Supreme Court ofIllinois in 1911and reported in96 N. E. 837. This case involved a slightly different fact situation than the preceding cases. Inthis case, the check as originally written contained the numbers $25.00 as marginal figures and inthe body the amount was set forth as $2500.00. The defendant altered the instrument by changing the marginal figures to read $2500.00 and cashed the check. The court in reversing thejudgment of conviction used the following language:

“But the figures inthe margin of an instrument are not strictly apart ofthe contract. They cannot be reverted to, to impeach the amount named inthe body of the paper, and are never resorted to for any purpose, unless there is uncertainty in regard to the amount written in the body of the instrument.” Later in the opinion, the court cites the case above set out and uses this language:

“Other courts have held that an alteration of marginal figures ona check inwhich the amount payable is plainly expressed inwords is not forgery.” Itis our opinion that under Articles 984 and 987 of Vernon’s Penal Code and under the cases above cited, the defendant would not be guilty ofthe offense of forgery. Although the Hide case, supra, would seem to support an indictment for forgery, we believe that itis an isolated case and that the majority rule as shown inthe later cases above cited would be followed by the Texas courts. SUMMARY

The altering ofthe original marginal figures on an otherwise valid check so long as the sumHon. Sam B. Hall, Page 6 Opinion No. V-121

written inthe body ofthe instrument remains unchanged **and** certain does not constitute the crime **of** foqery in Texas.

. BY

CYM: rt:sl Yours very truly, ATTORNEYGENERALOFTEXAS

Clarence Y. Assistant

APPROVED APR 8,1947

ATTORNEY GENERAL OF TEXAS