Nash v. State , 115 Tex. Crim. 324 ( 1930 )

In his motion for rehearing appellant renews his attack upon the indictment. That question was seriously considered in more than one consultation at the time the state's motion was before us and after exchange of views the conclusion was reached that the indictment sufficiently charged the offense. However, because of the earnestness with which the criticism is again urged we have further reviewed the indictment and find no reason to alter the conclusion heretofore reached. To the mind of the present writer much significance attaches to the words written into the acceptance of W. C. Biggers and Co. by appellant "For 28 bales cotton for which tickets are attached." (Italics ours.) It plainly appears from the indictment what occurred when appellant presented the acceptance and received therefor the cashier's check for $2690.82. Following this is an averment that appellant did "then and there and thereby" represent that he was the buyer of the 28 bales of cotton mentioned in the acceptance and the attached tickets, and that appellant was the owner of said tickets, etc. It is appellant's contention that in using the word "thereby" in connection with "then and there," the pleader has in effect averred that no further representations were made by appellant than those legitimately inferable from the face of the acceptance itself. To adopt appellant's view would at least be extremely restrictive.

After appellant secured the cashier's check for $2690.82 from the Kaufman bank he took it to Kemp and obtained in exchange for it two cashier's checks from the Kemp bank, one payable to appellant for $2650.30 and one for $40.52 payable to Biggers and Co. Appellant deposited his check in a Dallas bank. The cashier of the Kaufman bank testified that when the $2690.82 check was delivered to appellant that he (the cashier) parted with the possession and the bank parted with the title. Appellant then offered to prove by the cashier that at the time he delivered the check to appellant he did not intend for appellant to get the money and did not intend to deliver title to the money to appellant, but that he delivered the check to appellant to take it to the Kemp bank in whose favor it was drawn. Upon objection from the state the offered testimony was excluded. Appellant complains of this ruling in several bills of exception. What the cashier's intentions were relative to who should ultimately get the proceeds of the check seems immaterial. He parted with the possession and title to the check when it was delivered to appellant. The issuing bank became obligated to pay the amount thereof when the check was presented and payment demanded by a legal holder thereof and never expected to receive back the check free from its face obligations.

Appellant sought to have the following special charge submitted:

"You are instructed as a part of the law in this case that whenever a check, draft or other negotiable instrument is made payable to a person or order, bank or corporation, or to his or its order, that such check, draft or order has no value in the hands of a third person unless the same has been endorsed by the original payee, or is in the hands of the original payee."

We think the requested charge is too broad in its language. The endorsement of the payee is evidence of the transfer of the check, but its absence does not necessarily affect ownership or value. Aside from this the refusal of the charge does not occur to us to have been erroneous in view of Art. 1548 P. C. which reads as follows:

"It is not necessary in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the person intended to be defrauded, if it is sufficiently apparent that there was a wilful design to receive benefit or cause an injury."

There is no question but that when the cashier's check was issued and delivered to appellant the bank so issuing it was solvent and the check was worth its face value. The fact that the issuing bank would under ordinary circumstances not be called upon to pay it unless endorsed by the payee, seems beside the question in view of Art. 1548 (supra). It is apparent that appellant not only designed to receive a benefit from his fraudulent acts, but that he actually did so and at the same time caused injury to the bank issuing the check.

The motion for rehearing is overruled.

Overruled.