No. 3137. | Tex. Crim. App. | Mar 22, 1905
Lead Opinion
Appellant was convicted of theft over the value of $50, and his punishment assessed at two years confinement in the penitentiary. The indictment follows the approved stereotyped forms and precedents. The proof shows, in substance, without quoting in detail, that appellant went to John Copeland, and represented to him that he had made arrangements with the County Attorney of Ellis County, by and under which agreement the county attorney had agreed to dismiss a prosecution of some character against Copeland then pending in one of the courts of Ellis County. It seems appellant represented in that connection to Copeland, that he (Copeland) was accused in the neighborhood of debauching a young lady, and she had gone to the county attorney with the view of instituting prosecution, and that appellant had secured the agreement from the county attorney that he would dismiss the prosecution for the sum of $80. In order to pay the county attorney for this service Copeland turned over to appellant $80 in money, and $5 additional, to pay appellant's expenses to the town of Waxahachie. The evidence conclusively shows that the county attorney had no knowledge or consent of any agreement or statement made by appellant to Copeland; and further, appellant admitted he had never had any such talk with the county attorney, nor had he contemplated having such conversation; but that he made said false representations to Copeland solely with the view of getting possession of his money. Among other things, the jury were instructed, that if the taking, although originally lawful was obtained by false pretext, or with the intent to deprive the owner of the value thereof, and to appropriate the property taken to the use and benefit of the person taking, and the same is so appropriated the offense of theft is complete. The learned trial court, predicated this charge upon that clause of article 861, Penal Code, which provides: "But if the taking, though originally lawful was obtained by any false pretext or with intent to deprive the owner of the value thereof, etc., the offense of theft is complete." The question presented then is, whether the foregoing facts make out a theft under the provisions of said article. We hold that they do not. Mr. Bishop in his work on Statutory Crimes, section 133, lays down the proposition, "However unqualified the enactments against cheating by false pretenses may be in their terms, numerous limitations drawn from the reasons of the common law as well as from considerations of their objects and purposes, encumber their practical application." And again Mr. Bishop (Criminal Law, section 468) says "Another doctrine sustained in New York is, that where if the false pretenses were true, the person parting with his goods would be guilty of a crime, or where he actually commits an offense in parting with them, the indictment for the cheat cannot be maintained." And see also section 432. And see Wharton Criminal Law, section 1151. In McCord v. People, 46 New York, 470, appellant being an officer stated that he had a warrant issued from one of the police justices of New York, charging prosecutor, Chas. C. Miller, with a criminal offense and *87
for his arrest; and prosecutor, in order to secure his release from said arrest, offered and delivered to appellant a gold watch and a diamond ring. The evidence showed that appellant had no warrant for prosecutor. He was thereupon prosecuted for swindling and obtaining said money by false and fraudulent pretenses. In passing upon the question, the court uses this language: "The prosecutor parted with his property as an inducement to a supposed official to violate the law and his duties, and if in attempting to do this he has been defrauded the law will not punish his confederate, although such confederate may have been instrumental in inducing the commission of the offense. Neither the law nor public policy designs the protection of rogues in their dealings with each other or to enforce fair dealing and truthfulness as between each other in their dishonest practices. The design of the law is to protect those who for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and to protect those who for unworthy or illegal purposes part with their goods." Citing State v. Crowley,
Reverting to the facts above, we find that Copeland paid money to appellant, for the purpose of bribing an officer. Can he be heard to say in any court that he relied upon such promise? The law will not permit him to rely upon an illegal promise. Before a pretext or false representation can be the basis of a prosecution, it must be such a pretext that, if true, would at least be lawful. If it is not lawful, then no citizen has a right to rely upon the false pretext. Having no right to rely upon it, it cannot, in contemplation of law, be a false pretext. Hence, appellant's acts do not come within the purview of this statute. To hold otherwise places the law in an anomalous condition. If, according to the terms of the staute, appellant has obtained through false pretexts, the money of prosecutor in the first instance, and appellant is solvent, prosecutor could sue appellant in the courts and recover the money: but having entered into an illegal conspiracy with him for the purpose as alleged, of bribing an officer, no court would give him a judgment for money obtained from him for such illegal purposes. Hence, it would be anomalous to hold that the prosecution against appellant could be maintained, and yet a civil suit could not be successfully prosecuted. It may be that appellant is guilty of conspiracy to bribe an officer, or some other offense; but, under the terms of the statute, and the spirit, object and purpose of it, being to suppress and not to perpetuate or assist in the perpetuation of crime, we hold appellant is not subject to prosecution under this statute.
The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent. *88
Addendum
The judgment was reversed at a previous day of this term, and is now before us upon motion filed by the Assistant Attorney-General, and in which motion the county attorney joins, asking for a rehearing. In the brief filed in connection with said motion, they have collated the following authorities: Cummins v. People, 25 Amer. St. Rep., 291; People v. Martin, 36 P., 952" court="Cal." date_filed="1894-05-31" href="https://app.midpage.ai/document/people-v-martin-5447038?utm_source=webapp" opinion_id="5447038">36 Pac. Rep., 952; Cunningham v. State, 38 A., 847" court="N.J." date_filed="1897-11-15" href="https://app.midpage.ai/document/cunningham-v-state-8061196?utm_source=webapp" opinion_id="8061196">38 At., 847; 12 Amer. Eng. Ency. of Law, 856; Com. v. Morrill, 8 Cush., 571; Gilmore v. People, 87 Ills. App., 128. In re Cummins, supra, after citing McCord v. People,
In Com. v. Henry, 22 Pa. St., 263, Woodward, J., delivering the opinion of the court, approved the principle laid down in the last cited case, and used the language of Lord Kenyon in the case therein cited, to wit: "But when the criminal law happens to be auxiliary to the law of morality I do not feel any inclination to explain it away. Now this offense is within the words of the act, for the defendants have by false pretenses fraudulently contrived to obtain money from the prosecutor, and I see no reason why it should not be held to be within the meaning of the statute." Com. v. Henry was a case wherein defendant had obtained money from prosecuting witness by falsely representating he had a warrant for the arrest of the prosecutor's daughter, and under said false pretenses secured $100. The court concludes that said statement form a proper basis for the conviction of obtaining money under false pretenses.
In the case of the People v. Martin,
All the authorities cited by counsel for State support their contention. After a careful review of the same, in the light of the original opinion, we believe they announce the correct rule of law in reference to this transaction.
Reverting to the statute iteslf, article 861, Penal Code, under which this prosecution was instituted, we find it is very broad; and does not state that the pretense must be a legal pretense, if true, but merely requires that if the taking, though originally lawful, was obtained by any false pretext, etc., the party would be guilty of theft. So we hold that the statute itself is broad enough to cover the prosecution here involved. We are not at liberty to interpolate any words into the statute. An illegal false pretense would nevertheless be a false pretense. The statute says, "any false pretext," and an illegal pretext might be a false pretext. Accordingly we hold that the statute covers the prosecution; and that the original opinion herein is wrong. We have heretofore held that money obtained by false pretext in a game of cards was a violation of law. Connor v. State, 8 Texas Ct. Rep., 574. And the same principle seems to be announced in Gray and *90 Ross v. State, 32 Tex.Crim. Rep.. The motion for rehearing is accordingly granted, and the judgment is affirmed.
Affirmed.
Henderson, Judge, absent.