Hill v. State
364 S.W.2d 381
Tex. Crim. App.
1962
Check Treatment

*1 HILL, Appellant, F. Lewis STATE of Texas. Criminal

Court

Nov. 16, 1963.

Rehearing Denied Jan.

Second Donald, Bowie, Cleveland, H. appellant. ‍​​​​​​‌‌​​‌​​​​‌​‌‌​‌​​​​​​‌​​‌​​​‌​​‌‌​​​​​​​‌‌‍Fitts, County Atty., Montague,

Earl Allred, Sp. Jr., Prosecutor, Bowie, Renne ‍​​​​​​‌‌​​‌​​​​‌​‌‌​‌​​​​​​‌​​‌​​​‌​​‌‌​​​​​​​‌‌‍Austin, and Leon B. Atty., for the State.

WOODLEY, Presiding Judge. theft; ‍​​​​​​‌‌​​‌​​​​‌​‌‌​‌​​​​​​‌​​‌​​​‌​​‌‌​​​​​​​‌‌‍punish- offense is ment, years.

Appellant stands convicted for the he obtained of $200 *2 him, Na- February 16, 1959, People’s Hill, the so from the said F. and did Lewis he ** appropriate that upon executing a note for same Bank the tional amount. It was contention the upon an indictment Prosecution was court, contends, proof trial he and here that theft, but the ordinary form for the a in pretext of false is theretofore made upon P.C. state relied Art. where, here, sufficient as the shows evidence nothing possession or said doné at the time appellant that obtained The state contends money the of was obtained. Janeway, money the and Mr. possession of was induced Vice President We authority are cited to no know of pretext by possession false surrender none rеquires pre- pretext, false aof in the execution theretofore made representation tense or be made own, he did not mortgаge cattle chattel possession same time of the property is ob- intent, at having the fraudulent tained. possession of the came into he The charge properly required court’s use, appropriate it to his own jury to find in order to convict that at appropriate did so it. acquiring time of property by means pretext a false made, then ap- or theretofore a find is such as to sustain evidence pеllant then deprive intende-d the owner appellant, ing by jury that owned who appropriate value thereof and borrowed cattle after property use, to his own ap- and that did by upon at times notes secured various bank propriate it. January On mortgages on cattle. chattel a chattel mort appellant executed 1413, P.C., Art. provide ‍​​​​​​‌‌​​‌​​​​‌​‌‌​‌​​​​​​‌​​‌​​​‌​​‌‌​​​​​​​‌‌‍not does that the non-existing cattle to gage on the secure pretext false be made prop- at time the $1,131.84 in to secure “all note for erty fact, pretext obtained. In a false owing said debtedness to become required not cases, hereafter in all and conviction * * * note, by whether evidenced may be had for property theft of taking оr otherwise.11 which, overdraft though lawful, was obtained with intent deprive the owner of value February 1959, appellant signed a On appropriate thereof and property amount and note credited $200 use benefit person taking, and Janeway his account. Mr. testified appropriаted. the same is so upon relied and would not have made the charge required court’s February jury loan on but $200 find that property representаtion that he owned was obtained with time, such intent at the cattle described also to find by it was obtained authorized a con- pretext false then oY made. theretofore upon a ob- finding viction possession into and came tained We find the evidence sufficient to Janeway “by L. monеy from Joe the conviction. sustain then pretext or made to false theretofore by Janeway L. F. Lewis Hill to the said Appellant’s complaint to the Joe corporeal personal acquire possession of said charge is before us. No ex fraudulently by and means of property ception' ruling upon any, pretext, and that at the time false requested charges jections or corporeal acquiring personal said so transcript. found in the See Medlock Lewis the defendant F. if he property, State, Tex.Cr.App., 356 S.W.2d 312. deprive intended to the said then L. Hill thereof, Appellant complains of value and to the intro Janeway of showing same use and benefit duction of evidence ‍​​​​​​‌‌​​‌​​​​‌​‌‌​‌​​​​​​‌​​‌​​​‌​​‌‌​​​​​​​‌‌‍propriate mort- rec- loans of this the bank to re- special charge every ord reflect that gages mortgages on and renewal of quested, every prior to the bank *3 charge, respectively able over- was made to the By this were ruled, main except given in the court’s mortgaged tо show were charge.” non- they sold and after had been were' existing their cattle and increase escape con There is from the mortgaged and loans secured additional clusion Court considered if this appears to bank. This evidence permitting above in we would effect be have been admissible show intent of exception relating to perfect court to bills of pellant time for he obtained the $200 after сharge long for Campbell of which was on trial. provided statute, contrary time State, 545, v. 163 294 S.W.2d Tex.Cr.R. State, holdings 121 in of this Court Ortiz v. 125; State, Crutchfield 144 Tex.Cr.R. v. 438, 58; v. 53 Tindol Tex.Cr.R. S.W.2d State, 291, 699; 162 Lawson 148 S.W.2d v. 396; State, 187, 156 239 Tex.Cr.R. S.W.2d 140, 439; Tex.Cr.R. 185 West v. S.W.2d State, 64, 297 Gonzalez v. 164 Tex.Cr.R. State, 580; 493, 140 Tex.Cr.R. 145 S.W.2d 144; State, Tex. S.W.2d Crawford v. 165 340, Hennessey State, 5 v. 23 Tex.Cr.R. 362; 147, Cr.R. 305 v. S.W.2d and Smith 215; State, Vaughn S.W. Tex.Cr.R. 138 State, 294, 291. 313 166 Tex.Cr.R. S.W.2d 290; 134 1 S.W.2d Branch’s Ann.P.C. seq., 2d 200 Sec. 188. et be we we would Even judgment is affirmed. excep authorized consider these bills of an ex tion nowhere do we find that because ON MOTION FOR REHEARING ception was reserved the action of in overruling re in MORRISON, Judge. .requested fusing charges, isas State, preserve error Driver v. Appellant takes this Court task for 105 285 S.W. аnd Sims Tex.Cr.R. complaints failure to discuss his as to State, 156 245 S.W.2d appeal charge. Notice in was this case 260. given on March incum- became upon appellant, bent under the terms of Appellant urges that we his bills consider 760d, V.A.C.C.P., perfect Article bills exception though even not filed in time exception days within No says thereafter. 90 in the rehearing that we did so exception bills relating State, recent case of Roberts v. Tex.Cr. apрear in the record. App., reading careful 360 883. A opinion in that case will reveal that 5, 1962, long On October after case this we declined to сonsider bill for had been set submission in this Court served, passing, in if we could it would days allowed for nothing. avail the accused of bills had case, elapsed, peculiar we were Under the facts of thia with certificate necessary from the trial court in which stated that became far State track the exceptions history financial objections dealings “The de- entire of the of the be- injured case, fendant the court’s in this tween bank in request special may why to know order for put relinquish proper be in form at a later would the sum made require- charged in this in legal date at time within the indictment law, permission ments manner same was done and and the given.” that “It means used order to It further recites in him as up was the intention build the bank’s confidence of the court at the businessman, with the legitimate together MORRISON, Judge. representations made fact intoxicated; The offense driving while the bank were fact untrue. the punishment, days jail fine and a properly $250.00. we Remaining convinced that disposed originally, of this cause error, State agree. confesses and we rehearing motion overruled. July information in case filed while the was not July

to until *4 quash Motions judg- in arrest ment were overrulеd. has been the rule that a been information has support will not a conviction. v. State, Womack MARLAR, Appellant, and cases there citеd. The judgment prose- is reversed and the Texas, Appellee.

The STATE cution ordered dismissed. No. 35353. Appeals Court of Criminal of Texas.

Feb. WRIGHT, Appellant,

Robert STATE Court Criminal of Texas. Jan. Clifford, Lubbock, &

Blanchard

pellant. Atty., Austin, B.

Leon State.