146 S.W. 543 | Tex. Crim. App. | 1912
Appellant was indicted for swindling, tried and convicted. 1. Appellant in his motion for new trial complains of the action of the court in overruling his motion to quash the indictment. There is no such motion in the record; however, there is a motion in arrest of judgment alleging that "the indictment fails to charge any offense, in that it fails to charge or allege in express terms any sale or delivery of the cattle in question to the injured parties." The indictment charges, among other things, that "the said W.J. King did then and there falsely pretend and fraudulently represent to the said Booth and Whiteside that he, the said W.J. King, was then and there the owner of thirty-seven head of cattle of the value of Two Hundred ($200) Dollars, and that he, the said W.J. King, was the owner of the same and had the right to dispose of the same and did thereby then and there fraudulently induce the said Booth and Whiteside to pay him, the said W.J. King, the said One Hundred and Ninety Dollars ($190)for said thirty-seven head of cattle then and there claimed to beowned by him, the said W.J. King, when in truth and in fact the said W.J. King did not then and there own said cattle and did not have the right to dispose of the same, and the said W.J. King then and there knew that said pretenses and representations so made by him to the said Booth and Whiteside were false."
We are cited by appellant to the case of Cummings v. State,
2. Another contention of appellant is that the indictment alleged that he had obtained money from Booth and Whiteside, whereas in fact the testimony shows that he received checks. The court excluded by his charge the two checks, one for $50 and one for $70, given by Whiteside, and the case was tried on the transaction with Booth, and Booth does not say anything about a check, but says he paid the defendant one hundred dollars in money on his representation that he had thirty-seven head of cattle which he would deliver on Monday morning. But if the proof had shown that appellant received a check on a bank which he cashed at the bank, article 945 of the Penal Code provides that "within the meaning of money, as used in this chapter, are included also bank bills or other circulating medium current as money" and there would be no variance in the proof and the allegation.
3. The evidence would show that appellant was the owner of two head of yearlings, and sold them to Booth and Whiteside, and at the time stated he knew where he could obtain three more head, and he was given a check to cover the price of each head of cattle. That later he told Mr. Whiteside he knew of others he could purchase, and he was given a check for seventy dollars with which to buy them. After getting this amount he telephoned Mr. Whiteside that he wanted some more money on some cattle he had just bought and partly paid for, and he would deliver them Monday. He was told to see Mr. Booth, and Mr. Booth says that appellant came to him and told him he had purchased thirty-seven head of cattle and needed one hundred dollars to finish paying for them, and he would deliver the cattle Monday, showing him bills of sale for the cattle. Relying upon this representation he let him have the one hundred dollars. The evidence further shows that appellant at the time these representations were made did not own thirty-seven head of cattle, and further shows he had not contracted for that number, and did not deliver or attempt to deliver that number on Monday or at any other time. *400
We have carefully considered all the assignments of error in the motion for new trial and none of them present error.
The judgment is affirmed.
Affirmed.
[Rehearing denied May 8, 1912. — Reporter.]