83 S.W.2d 668 | Tex. Crim. App. | 1935
Lead Opinion
Conviction for swindling; punishment, ten years in the penitentiary.
In the case of New v. State (127 Tex.Crim. Rep.),
As above stated, appellant was convicted of swindling. He got from Mr. Rasmussen, — for brevity referred to herein as R, — a transfer or assignment of a deposit of money in a bank upon his representations that he would obtain for R and forward to him in a few days, bonds of the United Post Office Corporation, as here testified said bonds were called by appellant, or bonds of the United Post Office as would appear from the written order prepared by appellant and signed by R, — the amount of said bonds being $4200.00, and which bonds R testified appellant told him were guaranteed by the government (though he did not say by what government).
Appellant visited R at least twice at his home, and on the second visit got from R the assignment of the deposit in said bank, on which occasion he gave R the original or a copy of a document addressed to Ben E. New Company, Investment Securities, Dallas, Texas, which document contained the following:
"Gentlemen: $4200.00 United Post Office 5 1/2 due 1935.
"I enclose deposit $4200.00 in full payment. Ship the securities to me at once.
"I enclose $__________ to apply on account. x x x
"I understand that I am buying the above Securities as a speculation, on your guarantee that they are authentic and genuine issues.
"Ben E. New
"Special Representative
"(Signed) Jes Rasmussen."
The assignment of R's deposit in said bank was of date April 26, 1933. After getting same appellant transferred it to another man for some other property, which he later converted into money. The Post Office bonds referred to were never sent to R. R testified on this trial that appellant insisted on his assignment of his deposit as when made, — because he wanted to use same at once in a deal out of which appellant expected to make considerable money. R testified as follows: "Yes, sir, I did expect, when I gave him this assignment, for him to have *18 the title to my deposit over there before my bonds came; yes, sir, he was going to get title to this deposit before the bonds came, because he said he didn't have the bonds with him; he would send them by express, but he needed that money that night to close that deal in Wichita Falls, and I suppose he got it."
In another place R testified as follows: "At the time I signed up this transfer I identified awhile ago I wasn't expecting anything; he got that $4200.00, and for that money he was going to send me them Postal bonds. No, he didn't tell me whether he had them or whether he had to go buy them."
On cross-examination R testified as to what he had sworn on a former trial, as follows: "Q. You said he (referring to Mr. New) was to buy some bonds? and I answered 'Yes, he was to buy me $4200.00 worth of bonds.' "
In Sec. 2627, Branch's Annotated P. C., it is said: "To constitute the offense of swindling, some false representation as to existing facts or past events must have been made. Mere false promises or false professions of intention, although acted upon, are not sufficient." Many cases are cited, among them, Williams v. State, 34 Tex.Crim. Rep.; Martin v. State, 36 Tex.Crim. Rep.. There are other and later cases holding the same.
As we regard this record, R parted with his assignment of his deposit in the bank upon appellant's representations that he as agent, or partner in Ben E. New Company would at once procure for and forward to R Post Office Corporation bonds in amount and value of $4200.00, which promise and agreement appellant did not keep, and the State would probably be justified in concluding that he had no intention of keeping at the time he made such representations and got R's assignment.
We deem it not inappropriate in this connection to call attention to several cases on facts somewhat akin to the one on trial, in which this court has held the offense to be theft by false pretext and not swindling. See De Blanc v. State,
In the light of R's testimony it seems beyond dispute that all he got from appellant in exchange for his assignment of his deposit was the promise of appellant to send him the bonds referred to. False promises by which one is induced to part with his property will support a conviction for theft by false pretext, but seemingly not for swindling. Gibson v. State,
We also call attention to the rule laid down in Art. 1549, P. C., cited in Haley v. State, supra, in effect that in case property of another be gotten in such manner as to come within the meaning of theft, or some other offense, — the rules prescribed for swindling in Chap. 16, Title 17, P. C., shall not be understood to take any such case out of the operation of the law defining such other offense. We think application should be given this rule in determining the propriety of a prosecution of this appellant on these facts for the offense of theft by false pretext.
Giving application to the things above said, we are reluctantly compelled to direct a reversal of this case, and it is so ordered.
Reversed.
MORROW, P. J., absent.
Addendum
The State has filed a motion for rehearing insisting that because among other things the indictment averred false representations as to some existing facts, viz: — that the bonds in question were guaranteed by the Government of the United States of America, and that they were worth one hundred cents on the dollar, we were in error in our opinion of reversal. The State relies upon Boscow v. State,
The State's motion for rehearing is overruled.
Overruled.