
    Alvin Nobles v. The State.
    No. 23549.
    Delivered January 15, 1947.
    No attorney of record on appeal for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was given a fine of Seventy-Five Dollars on a charge which probably attempted to invoke Section 1 of Article 567b of the Penal Code. I quote from the brief of the State’s Attorney as follows:

“The information alleges ‘that one Alvin Nobles, hereinafter styled Defendant, heretofore on or about the 20 day of Aug. 1945, in the County of Dallas and State of Texas, did unlawfully and with the intent to defraud Albert Reagan,

“‘(a) Obtain from the said Albert Reagan certain (service), to-wit: Two Writ hearing & recovering certain property of the value of $35.00 Dollars, which said check was then and there of the tenor following:

Dallas, Texas, Aug. 20, 1945 No_________

Mercantile National Bank

Pay to the Order of Albert Reagan $35.00/100

Thirty-Five and No/100 Dollars.

Alvin Nobles

with which said bank (person) (firm) (corporation) the defendant did not at the time said check (draft) was so given and drawn have sufficient funds to pay such check (draft) and all other checks and drafts upon said funds outstanding at the time said check (draft) was so given and drawn, Against the peace and dignity of the State.’ ”

The brief further says that the allegation in the complaint and information “seems to be ambiguous, uncertain, and incapable of an intelligent construction.” It is further observed that there is no allegation that the appellant gave or drew said check. He also observes that the proof is insufficient, and finds a fatal variance between the allegations and proof.

Our examination of the record leads us to concur with all of the observations of the State’s Attorney.

The judgment of the trial court is reversed and it is directed that the prosecution be dismissed.  