’ 

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 a valid 

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 of March 29. 1947, requesting an opinion of 

this deprtsneat aa to whether or not the offenee of forgery has 

been committed under the facts submitted, has been considered 

by this IkyWbment. W&r the facts submitted, a defendant took 

a valid &eck for $4.80, Placed a figure 5 before the figures $4.80, 

and obtained the amount fbf $54.80 whea fie cashed this check. You 

also state th8t the ameuht written in the 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 in the body of the 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 of forgery who, without lawful 

authority, and with iritent te 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 it had been legally made) ,have 

created, increased, diminished, discharged or de’- 

feated any pecuniary obligation, ‘or would have transferred, or in any manner have affected any property 

whatever.* 

Artiale 9g7, Vernon’s Penal Code, defines the word “alter” as used, in the above statute. 

*The word ‘alter’)~ in the definition of forgery, 

meana te erree, 0’1: obliterate any word, letter or 
Hon. 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 1919 and is found in Articles 5932-5948, Vernon’s Civil Statutes. 

We think that part of it which has to do with the construction of the 

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 a discrepancy between the two, the sum denoted by the words 

is the sum payable; but if th@’ w&r& are ambrguous 

or uncertam, reference may be Ii&H to 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 on a negotiable instrument is when the words denoting the amount are ambiguous or 

un&ertain, In the case before us the words are written by check 

protector and are clear and unambiguous. 

We have been unable to find a Texas case in point, but we 

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 in which the amount payable is plainly expressed 

in words 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 in the amount 

of seventy cents. However, the figure 3 was inserted between the 

dellat mark and the figures 70 in the upper margin of the check, thus 

making it appear to be a check for $3.70, although the amount was 

written “Seventy Cts. ’ in the body of tke check ahd this writing was 

unaltewd. The Court used the following language in this case: 

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

crime. It is certrinly not necessary that the whole 

instrument should be made false @r fictitious. Making an alteration or erasure in any material part of 

a true instrument, whereby another may be defrauded, is a forgery. This check, in a material - and we 

may say a prominent - part, was altered; and it does 

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 of the fraud.” 

Another case involving a similar fact situation was the 

case of Wilson v. State, decided by the Supreme Court of Mississippi in 1905, and reported in 38 So. 46. In this case, the figures 

in the upper right hand corner of the draft were altered from $2.56 

to $12.50, but the words “Two and 50/100 Dollars” were written in 

the body of the instrument and were unchanged. Also, the words 

“Ten Dollars or Less” were stamped across the face of the draft. 

The court in this opinion reached the conclusion that the alteration 

was not forgery, and in so doing, used the following language: 

“This was not forgery, because it was an immaterial part of the paper, and because 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 a material part, 

so that injury might result.” 

The court further states: 

.e 

. o * it must have been capable of working injury if it had been genuine, and that the marginal 

numbers and figures are not part of the instrument, 

and their alteration is not forgery.* 

This case cites the Texas case of Anderson v. State, decided by the Court of Appeals 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, if it were true, would create, increase, diminish, dasch@rge~efeat a pe- .,,_,, 

curnary obligation, or would transfer or rn some 

manner affect property.’ (Emphasis added.) 

The next case is the case of State v. Latono, decided by the 

Supreme Court of Appeals of West VirginirP in 1907 and reported in 
Hon. 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 of the check contained the writing “Two 

and 70/100 Dollars” and this was not altered. The Court in this 

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 

in what are called in some cases the ‘marginal 

figures,’ which, while they might mislead one who 

should fail to observe the body of the instrument, 

could not change or affect the legal status of the 

party, or tend in legal effect to prejudice another”s 

right. The alteration of the check in this 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 of the altered instrument in evidence; and the alteration being shown, nothing remained for the 

jury to pass upon. . . . 

“Was the alteration of the figures in the check 

a material one? We think not. It is true the figures follow the words in the body of the 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 if written at the top or in 

the margin, and for convenience. They are not controlling, and do not change the legal effect of the paper. The words are the controlling portion, and the 

figures constitute no material part of the 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, and we do 

not think it states the law correctly.” 

The next case we consider is the case of McIntosh v. 

State, decided by the Court of Appeals of Georgia, Division No. 2 

in 1919 and reported in 98 S. E. 555. In this 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 in this case cited the Lotono, Hide and 

Wilson cases and concluded: 

“From the foregoing opinion, it appears that before the alteration of a check or a draft can be the 
Hon. Sam B. Hall, Page 5 Opinion No. V-121 

basis of a prosecution for forgery, the change 

must be such that~ it would affect the ‘legal liability of the parties in an action on the instrument. ’ It is well established that when the amount 

of a check is expressed both in words and figures, 

and there is a conflict between the two, the amount 

stated in the words control. . . applying the above 

rule to the fact as alleged in the indictment in the 

instant case, it follows that the change in this 

check upon which the prosecution in the 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 of Illinois in 1911 and reported in 96 N. E. 837. This case involved a slightly different fact 

situation than the preceding cases. In this case, the check as 

originally written contained the numbers $25.00 as marginal figures and in the 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 

the judgment of conviction used the following language: 

“But the figures in the margin of an instrument are not strictly a part of the contract. They 

cannot be reverted to, to impeach the amount 

named in the 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 on a check in which the amount 

payable is plainly expressed in words is not forgery.” 

It is 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 of the offense of forgery. Although the 

Hide case, supra, would seem to support an indictment for forgery, we believe that it is an isolated case and that the majority 

rule as shown in the later cases above cited would be followed 

by the Texas courts. 

SUMMARY 

The altering of the original marginal figures 

on an otherwise valid check so long as the sum 
Hon. Sam B. Hall, Page 6 Opinion No. V-121 

written in the body of the 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