Lamoyne v. State ( 1908 )

This case was affirmed at the Dallas term and now comes before us on motion for rehearing. The original opinion in the case was delivered by Judge Brooks. In view of the fact that the question involved in the motion for rehearing has been presented for the first time since the accession of the writer to a position on this court, and in view of the fact of the difference between the other members of the court, as reflected and evidenced by the dissent of Judge Brooks in the case of Lively v. State, 74 S.W. Rep. 321, the preparation of the opinion on this motion, has devolved upon the writer. I think the motion for rehearing should be overruled and that the conclusion reached in the original opinion is correct.

There is some complaint that the original opinion does not state the case accurately as to some of its details. The statement is not as full as it probably might have been and is not entirely correct in its recital of some amounts and dates, but there is no such inaccuracy contained in it as could in any event have changed or affected the conclusion arrived at. The record shows that one J.M. Hoskins was vice president of Drane Co. and that appellant came to him in August, 1905, and represented to him that he lived on his own farm near Rice in Navarro County, Texas, which consisted of two hundred and twenty acres of land; that one hundred acres of this land was in hay meadow on which was growing very fine hay and of sufficient value to pay for the press which he then desired to buy; that said hay was matured and ready to cut. According to the testimony of this witness, appellant represented that there was no lien or mortgage on the hay and proposed that he would give a mortgage upon the hay for the property he desired to buy. Hoskins testified that he believed that appellant owned the place as represented and that he relied upon the truthfulness of the other statements made by him; that in selling the hay-press in question he took a note and mortgage upon the property described therein and let appellant have the hay-press and lifting-jack. The mortgage also included a McCormick mower and rake and, among other things, contained this statement: "Also all earnings of my haying outfit, including my own hay, I have about 100 acres of my own meadow to put up, there is no prior lien on my own earnings or own hay. This lien on earnings is to run from season to season until this obligation is paid." The hay-press and lifting-jack were sold for $250. The testimony showed that it cost Drane Co. $200 with freight. It was shown that the McCormick mower and rake was worth at retail $75 and at wholesale $59. The witness Warren testified that the hay was worth $5.50 per ton. The appellant testified that it was worth $8 per ton. It was shown that the People's National Bank held a mortgage for the sum of $316.15 upon three head of horses, nine head of cattle and the entire crop of appellant and that of his tenant Warren, upon a wagon and all other farming tools and implements owned by appellant and also a mortgage upon the hay. The testimony shows that Mrs. Richmond who owned the land which appellant was farming had a mortgage upon all of his crop consisting of forty acres of cotton and twenty acres of corn; and all hay to be raised upon the Richmond farm, upon five head of cattle and two head of horses to secure her rent of $200. Of this amount it appeared that $100 had been paid before the mortgage on the hay was executed to Drane Co. The appellant insists that the opinion of the court on the original submission is at variance with and directly opposed to the opinions of this court in the case of Gaskins v. State, 38 S.W. Rep. 470; Perry v. State, 39 Tex.Crim. Rep.; 46 S.W. Rep. 816, and Lively v. State, 74 S.W. Rep. 321, and we are in terms asked to either grant the motion for rehearing upon the authority of the cases above cited or to overrule these cases in order, as stated, "that the legal profession as well as the citizens of the State, will not be misled thereby." There can be no sort of doubt that the decision of this case is directly opposed to and at variance with the decisions and rulings of this court in the cases cited above, and appellant's counsel is clearly right in his contention that if we are to follow the cases cited that it must of necessity result in a reversal of his cause. We do not believe, however, that the cases cited are correct, nor do we believe they should be followed. On the other hand we believe that both the reasoning and conclusion of these cases are unsound and that the result is vicious and that they should be set aside and both the profession and the people of Texas advised that a different rule has been ordained in this State. The first of the cases in point of time was that of Gaskins v. State, 38 S.W. Rep. 470. In that case appellant was charged with obtaining a horse, from one James Mitchell, of the value of $50. The proof there showed that Gaskins represented to Mitchell, the owner of the horse, that same was lost; that Mitchell, relying on such representation, was induced to part with said horse, or the chance thereof, for $15, which Gaskins paid him; that in truth the horse was not lost but was at the time in Gaskins' possession and that the evidence showed he was worth all the way from $15 to $35. In the charge of the court, the jury were instructed as to a felony and a misdemeanor and they were told that if they found that defendant procured the horse by means of swindling, and that the value of the horse was $20 or over, to find defendant guilty of felony. In this state of the proof counsel for Gaskins requested the court to charge the jury as follows: "Before the jury can convict of a felony in this case, they must find, beyond a reasonable doubt, that the horse was worth $20 over and above the $15 paid for him by the defendant. Therefore, if the jury have a reasonable doubt as to whether the horse is worth that amount, they cannot convict the defendant of a felony." In the majority opinion by Judge Henderson it was held that this charge should have been given and the case was reversed on this ground. Judge Hurt dissented from this opinion and on this branch of the case said: "To be a felony the property obtained (the horse in this case) must be of the value of at least $20. Appellant gave to the owner $15 for the horse. The evidence is conflicting with regard to the value of the horse. Some of the witnesses swore that he was worth $35; others swore that he was not worth $20. Under this state of case appellant assumes two positions: First. That if the $15 be deducted from the $35, $20 would remain; but that, if the horse was not worth $35, then less than $20 would remain, the amount really obtained in value from the prosecutor. Second. That the horse was not worth more than $15, and that there was no swindle. Replying to the last position we have to say that there was a conflict in the evidence, as above stated. To the first, we reply that if the horse was worth $20 or over, the $15 paid for him cannot be deducted therefrom. The $15 paid was in connection with the false pretenses and devices, a part of the means used to accomplish the swindle. See Penal Code 1879, article 793. The value of the property acquired is the test. If the horse was worth $20, it was a felony." We think Judge Hurt correctly states the rule when he says, "the value of the property acquired is the test." The next case is Perry v. State, 39 Tex.Crim. Rep.. The court, when this case was decided, was composed of the same judges who decided the Gaskins case, supra. There is no note of any dissent in that case, but we presume that Judge Hurt having dissented in the Gaskins case, had felt that the question had been decided by the court and that his dissent was unnecessary and would in any event be unavailing. It is sufficient to say that the Perry case, in terms, approved and reaffirmed the doctrine laid down in the Gaskins case above referred to. The remaining case cited is that of Lively v. State, 74 S.W. Rep. 321. On original submission the judgment of conviction in that case was affirmed. On rehearing, however, it was reversed and remanded on the authority of the cases above referred to. In the opinion on motion for rehearing the following statement appears: "Appellant in his motion contends that the court did not consider his first and seventh assignments of error, which call in question the action of the trial court refusing to give his special requested instruction to the effect that if appellant owned one bay horse, and gave a mortgage on that horse and buggy and harness to secure the purchase price of the buggy and harness, said buggy and harness and horse being of equal value or sufficient to pay the $82.50 for the buggy and harness, then defendant could not be convicted, although he may have misrepresented to the prosecutors that he owned another horse and also a crop of cotton, on which he gave a mortgage at the same time." It appears in that case that the buggy and harness were of the value of $82.50. It is stated that the least value placed on the horse received from the appellant by prosecutor was $30 as testified to by them; that the sellers received from $90 to $112.50 worth of property in consideration of his debt of $82.50 and while appellant did not own the other horse or any cotton crop, in fact, the prosecutors were not swindled out of any value. Judge Henderson concludes his opinion in that case with the following language: "Certainly, under the facts of this case, the special instruction or a charge similar thereto should have been given. We do not understand that in a case of this character, appellant is tried solely on his intention to commit a swindle; that is, before he can be adjudged guilty, he must have defrauded a party to whom he makes false representations out of money or property of some value." The dissent of Judge Brooks in this case is noted in the reports. In order to present our views clearly on this question, we desire to review some of the articles of our Penal Code. Article 943 is as follows: "``Swindling' is the acquisition of any personal or movable property, money or instrument of writing conveying or securing a valuable right by means of some false or deceitful pretense or device, or fraudulent representation with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same." After specially enumerating certain acts within the meaning of the term "swindling," subdivision 4, of article 944, provides: "The special enumeration of cases of swindling, above set forth, shall not be understood to exclude any case which, by fair construction of the language, comes within the meaning of the preceding article." Article 946, which we think notably important, is 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 persons intended to be defrauded, if it is sufficiently apparent that there was a willful design to receive benefit or cause an injury." Article 949 of the Penal Code is as follows: "Every person guilty of swindling shall be punished in the same manner as is provided for the punishment of theft, according to the amount of the money or the value of the property or instrument of writing so fraudulently acquired." Under these provisions of our Penal Code, it is our belief that the law intends to punish any one who willfully and knowingly makes a false representation as to a substantial and material fact, whereby he induces another to part with his property and that the grade of the offense is to be fixed as stated in article 949, by the value of the property so fraudulently acquired, and that construing this last named article of our statute, in connection with the provisions of article 946, which provides in terms that 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 that any injury shall result to the person intended to be defrauded, that it is inconceivable that our lawmakers should ever have intended that the grade of the offense should be fixed by any other testimony than the value of the property the possession of which is yielded up on such fraudulent representations. The law concerns itself with two questions only: (a) was the false pretenses willfully and knowingly made with respect to the property so fraudulently acquired; and (b) what was the value of the property acquired by the person making the false representations, the possession of which was lost by the person trusting to the untrue statements so made. We recognize that our laws are made for erring man and are to be construed by courts, subject always to error and misconception and that we may in vain hope that it may ever be truly said of our statutes that they are always "right, rejoicing the heart"; or that their "commandments are pure, enlightening the eyes," but we do believe that these statutes manifest and evidence, in such conclusive fashion as to admit of no doubt or controversy, that it was intended to punish any man and every man who secured the property of another on a representation known to be untrue, and that the grade of his offense should be fixed solely and only by the value of the property the possession of which is so fraudulently acquired. Any other construction would encourage, if not lead to dishonesty. Any other construction would make article 946, which declares that it is immaterial that any benefit shall accrue to the person guilty of fraudulently acquiring the property, absolutely meaningless and would substantially nullify the provisions of article 949, which says that the person swindling shall be punished in the same manner as provided for in the punishment of theft, that is, according to the amount of money or the value of the property so fraudulently acquired. We may never hope, possibly we shall never realize, that our laws should be as inflexibly just as the Ten Commandments and as ethically pure as the Sermon on the Mount, but by their proper interpretation, we can uphold their honesty and efficiency, and where provision is made for the punishment of a citizen who fraudulently acquires by deliberately untrue statements the property of another citizen, mete out to him the measure of punishment, tested by the value of the property lost by the one and acquired by the other.

Again, appellant contends that this court erred in holding that it was not error for the trial court to refuse to give in charge the special instruction requested by him, to the effect, "that Drane Co. had the right to compel Mrs. Richmond and the People's National Bank to marshal their securities, and to make their indebtedness out of the other security held by them, before resorting to their security upon the hay grown upon the Richmond farm, and that if the security given by LaMoyne to Drane Co. was of greater value than the hay-press, that he bought from Drane Co., he should be acquitted." The doctrine of marshaling securities as between creditors of a common debtor in all contests involving priority and adjustment of liens is well recognized and has been frequently applied. Brown v. Thompson,79 Tex. 58; Rogers v. Blum, 56 Tex. 1; Pridgen v. Warn, 79 Tex. 588; 1st Story Equity Jur., paragraph 633. If, however, we are correct in our conclusion that the grade of punishment is to be fixed by the value of the property acquired, this contention of appellant is unsound and the court was not in error in so holding. We confess that we can not believe that it was ever intended, under the provisions of our Penal Code, that where one is induced to part with the possession of his property on the false representations, deliberately made in respect to the material fact, that in a criminal case, the law of marshaling securities should ever apply. Believing that the cases of Gaskins v. State, 38 S.W. Rep. 470; Perry v. State, 39 Tex.Crim. Rep.; 46 S.W. Rep. 816, and Lively v. State, 74 S.W. Rep. 321, are unsound, the conclusion therein reached erroneous, and the effect hurtful, we here in terms overrule these decisions and declare them to be no longer the law in this State. Believing, on full reflection, that the rule announced in the original opinion is correct, the motion for rehearing is hereby overruled.

Overruled.