JACK GIBBS V. STATE
No. 26,012
Texas Court of Criminal Appeals
November 12, 1952
Rehearing Denied January 14, 1953
158 Tex. Crim. 145
The evidence sustains the conviction.
As a part of the narrative statement of facts appellant attempts to complain of certain conduct of the county attorney, and of the faсt that appellant was not afforded time in which to obtain a lawyer.
There are no bills of exception аpproved by the trial judge in the record and the complaints cannot be considered. Furthermore, the facts recited would not call for a reversal if presented by bills of exception properly allowed.
The appeal is reinstated and the judgment is now affirmed.
Allen, Crampton, Johnson & Purcеll, (Z. D. Allen, one of counsel) Wichita Falls, for appellant.
George P. Blackburn, State‘s Attorney, Austin, for the state.
Appellant was given a sentence of ten years in the penitentiary by a jury verdict on a charge of cattle theft.
The indictment in the case contains four counts, the first charging appellant with the theft of 53 head of cattle belonging to Tommie Howard. The second count charges theft of 53 head of cattle belonging to L. H. Turner. The third charges the theft of 50 head of cattle belonging to Tommie Howard, and the fourth charges the theft of 50 head of cattlе belonging to L. H. Turner.
No evidence was introduced by appellant in the case and the facts presented by the state are to the effect that appellant purchased 54 head of cattle from a commission сompany in Palo Pinto County on the 22nd day of September, 1951, for which he gave a check on a Wichita Falls bank, in thе amount of $8,442.87. The check was accepted and, thereafter, the cattle were taken by appellant and moved to another county. The conviction is on the fourth count in the indictment charging theft.
It is the contentiоn in this appeal that the prosecution should have been for swindling by giving a check on a bank in which he had insufficient funds. Four propositions of law are presented in appellant‘s brief, three of which are dependent upоn appellant‘s contention that the prosecution should have been for swindling. The fourth complains of the сlosing argument of the prosecution, based on the contention that it was a reference to the failure оf the defendant to testify.
On the question of the alleged error in prosecuting appellant for theft instead of swindling, appellant refers to 39 Tex. Jur. p. 1088; DeBlanc v. State, 118 Tex. Cr. R. 628, 37 S.W. 2d 1024; and Johnson v. State, 144 Tex. Cr. R. 392, 162 S.W. 2d 980. These cases are discussed in the brief but we are unable to follow the reаsoning therein. To the contrary, we think that each citation is authority for the state‘s position that, the evi-
The opinion in the DeBlanc case is a lengthy one and is quite exhaustive on the subject which is the controlling question in the instant case. A long line of authorities are listed and discussed. It is said that where facts are such as would warrant prosecution on either swindling or theft, the indictment should be for thеft, citing
The argument complained of is: “It would have been a good thing for Gibbs or his counsel to have brought out anything about the check.” The trial court dеclined to approve this bill as presented to him but attached thereto his qualification referring to the statement of facts and, directing attention to page 22 thereof, he says that during the oral argument to the jury one of the defendant‘s attorneys stated: “What became of the check Gibbs got for the cattle he sold in Mineral Wells: This money could have been applied on this sale.”
The trial court viewed the state‘s argument as being in reply to the quoted argument by defense counsel. The bill was accepted with that qualification and appellant is bound by it.
No reversible error is presented by the record and the judgment of the trial court is affirmed.
ON APPELLANT‘S MOTION FOR REHEARING.
WOODLEY, Judge.
Appellant suggests that, if our original disposition of his
It is well settled that the offense оf theft by false pretext defined in
Any question as to the effect of our holding in DeBlanc v. State, supra, cited in our original opinion, should be resolved by reference to
“Where property, money, or other articlеs of value enumerated in the definition of swindling, are obtained in such manner that the acquisition thereof constitutes both swindling and some other offense, the party thus offending shall be amendable to prosecution at the state‘s election for swindling or for such other offense committed by him by the unlawful acquisition of said property in such manner.”
The evidence being deemed sufficient to sustain conviction for theft by false pretext, it is immaterial that prosecution might have been successfully maintained for swindling.
The motion for rehearing is overruled.
WOODLEY
Judge