                                                                                    R-299




                                     Apr.     2, 1947


    Hon. Sam 3%. Hall                           Opinion No. V-121
    Prosecuting     Attorney
    Harrison   County                           Re:     Has the offense of forgery
    Marshall,   Texas                                   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 ac-
                                                        cordance with the marginal
                                                        figures?

    Dear   Sir:

                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 al-
    tered.   The photostatic  copy of the check shows the amount writ-
    ten 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 exist-
           tence, 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 trans-
           ferred, or in any manner have affected any property
           whatever.*

               Artiale 9g7, Vernon’s Penal               Code, defines       the word   “al-
    ter” 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 sub-
      stitute 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 dis-




           The 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 discrep-
      ancy 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 in-
strument 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 instru-
      ment 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 in-
      di&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.    Mak-
      ing an alteration or erasure in any material part of
      a true instrument,    whereby another may be defraud-
      ed, 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 Missis-
sippi 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 imma-
      terial part of the paper, and because it could not pos-
      sibly 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 in-
      jury 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, de-
cided 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.  How-
ever, 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 cre-
      ate, 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 fig-
ures.   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 admissibili-
      ty of the altered instrument      in evidence; and the al-
      teration 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 fig-
      ures follow the words in the body of the check de-
      noting 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 con-
      trolling, and do not change the legal effect of the pa-
      per.    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 num-
erals,  $57.60.   The Court in this case cited the Lotono, Hide and
Wilson cases and concluded:

           “From the foregoing opinion, it appears that be-
      fore 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 lia-
      bility of the parties in an action on the instru-
      ment. ’ 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 re-
ported 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 fig-
ures 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 instru-
      ment 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 re-
      sorted to for any purpose, unless there is uncer-
      tainty 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 for-
      gery.”

           It is our opinion that under Articles   984 and 987 of
Vernon’s  Penal Code and under the cases above cited, the defend-
ant would not be guilty of the offense of forgery.    Although the
Hide case, supra, would seem to support an indictment for for-
gery, 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.

                                         Yours   very truly,

                                   ATTORNEYGENERALOFTEXAS




                    .              BY
                                         Clarence Y.
                                            Assistant

CYM: rt: sl

                                   APPROVED      APR   8,1947



                                   ATTORNEY      GENERAL        OF TEXAS
