39 S.W.2d 62 | Tex. Crim. App. | 1931
Conviction is for theft, punishment being two years in the penitentiary.
The indictment contained three counts, the first charging by the usual averments the theft by appellant of $66 from Augustin Leal. This count only was submitted.
The facts upon which the conviction rests may be briefly stated as follows: T. T. Taylor had the general agency of the National Standard Life Insurance Company and of the Kansas City Life Insurance Company with headquarters in San Antonio. Appellant was a sub-agent of Taylor's. During the year 1929 appellant wrote seven life insurance policies in the two companies named in favor of Augustin Leal and three of his brothers. In negotiating with appellant for these policies Augustin Leal acted with his brother, Earnesto, and his mother in securing the seven policies mentioned. About March 1, 1930, Augustin Leal desired to purchase a new truck and appellant represented to him that by making advance premium payments he could borrow enough money on the insurance policies to purchase the truck. On said last named date Leal paid appellant $66 as part of a five-year advance premium payment. Appellant did not have authority to collect advance premium payments and never at *627 any time turned over to Mr. Taylor or to the insurance companies this $66 or any part of the $1,000 which he collected altogether from Augustin Leal.
The contention is that the undisputed evidence showed that Augustin Leal intended to part and did part with both the title and possession of the $66 in question, never expecting the return of any part of it, and that appellant therefore could not be guilty of theft as charged in the indictment. Based upon this contention, he requested the court to charge the jury that if Leal intended to part with the title and ownership of the $66 they would find the defendant not guilty of theft as charged in the indictment. The court declined to give this charge, but instructed the jury to convict appellant if he obtained from Augustin Leal the $66 in money by means of false pretext and with intent to deprive Leal of the value thereof and with intent to appropriate it to the use and benefit of appellant without the consent of Leal. Appellant predicated alleged error in the refusal of his special instruction upon expressions found in many cases which he cites to the effect that if the owner of the property parted or intended to part with the title as well as the possession the offense would be swindling and not theft. Recently we had occasion to review this question in DeBlanc v. State, 118 Tex.Crim. Rep.,
"But this case aptly illustrates a case where but for the fraudulent representation the title to the hogs would have passed, yet the appellant would not be guilty of swindling, because the fraudulent representation relied on was as to something thereafter to occur. And also aptly illustrates a case where a person obtains possession of property by fraudulent pretext, and under circumstances where the title would pass but for the fraud practiced, and is, in our opinion, the very character of case which article 1332 was intended to reach and punish."
Article 1332 referred to in the quotation is now article 1413, P. C. (1925). Upon the facts the present case and the one from which the quotation is taken are similar. It is a question here whether the title to the money passed by reason of the fraud practiced upon Leal.
Because the question was considered at length in the recent opinion in De Blanc's case (supra) we pretermit a further discussion of it here. It follows from what has been said that under the facts of the present case we think the refusal of the special charge not erroneous.
The judgment is affirmed.
Affirmed.