13 So. 2d 61 | Ala. Ct. App. | 1943
It seems necessary to notice but one question apparent on this appeal.
Appellant was charged by indictment with the forgery of a note — set out therein substantially but essentially — made payable to the "Florence Acceptance Company," described in the testimony as a partnership composed of J.L. Nichols and Madding King.
Upon the trial, as supporting the charge in the indictment, the State relied upon a note, which it introduced into the evidence over appellant's objection, with due exception reserved, made payable to the "Florence AcceptanceCorporation." (Italics ours.)
Waiving for the moment the error in admitting into the evidence the note last above mentioned, it is apparent that there was a variance, even with it in, between the allegata and probata — as those terms were discussed in the opinion in this case when it was here on former appeal. See Crump v. State,
Because of this it was error, for which the judgment of conviction must be reversed, to overrule appellant's motion to set aside the verdict of the jury and grant him a new trial.
Other questions apparent will probably not arise upon another trial.
Reversed and remanded.
