Whitehead v. State , 81 Tex. Crim. 278 ( 1917 )

Appellant was convicted of swindling, and his punishment assessed at the lowest prescribed by law.

The evidence was conflicting, though taken as a whole, and especially that of the State, it was sufficient to sustain the conviction. The questions raised can be understood and decided without a statement of the facts proved. However, what further is necessary will be stated in discussing the questions. The alleged false representation made the basis of the conviction was in substance that appellant falsely and fraudulently represented to Miss Ada Karnes that he was not indebted to anyone in any amount, which she believed and relied upon and was thereby induced to part with title to and deliver possession of a horse worth $100 and a mule worth $75 to appellant on November 4, 1914, and to accept a note for $175, the value of said animals.

His first bill of exceptions shows that the court admitted in evidence over his objections, which were many, the schedule in bankruptcy of appellant and his brother, R.S. Whitehead, sworn to and subscribed by each of them and filed in the bankruptcy court in December, 1915. This schedule embraced a list of a large number of different items of indebtedness of different amounts owed by said Whiteheads to various and sundry persons, aggregating nearly $20,000. Many of these embraced items which showed that appellant was indebted to various persons before he induced Miss Ada Karnes on his representations to turn over to him her said stock and part with title thereto to him. This prior indebtedness aggregated not less, though probably much more, than $5000. All of appellant's objections were to the introduction of said schedule at all. He made no objections whatever to any items of indebtedness shown by said schedule which may have been incurred by him subsequently to the obtaining of said animals from Miss Karnes. The court in allowing and approving appellant's bill on this subject did so with this qualification, which was accepted by him, towit:

"The schedule in bankruptcy was admitted by the court in evidence after it had been properly identified as having been signed and sworn to by the defendant and his brother R.S. Whitehead as admissions by them on the question of their insolvency, the indictment having alleged that they were insolvent, and they both, the defendant and R.S. Whitehead, afterwards testified as witnesses in the case and both admitted that they were insolvent at the time the note set out in the indictment was executed and continued in that condition to the date of trial. The defendant objected to the introduction of the schedules as a whole and the greater portion of the items in said schedule accrued prior to November 4, 1914, the date of the note set out in the indictment.

"The court overruled their objection to the schedule as a whole as he was not required to search through the items to discover whether there were any debts that were incurred subsequent to November 4, 1914. The statement in the bill of exception to the effect that the prosecuting witness, Ada Karnes, admitted on cross-examination that she relied upon the statements of Dr. Lancaster, Henry Zweifel and Mike Lewin about the deal with the Whiteheads, I do not certify as being correct. I have not the statement of facts before me, but my recollection of her testimony on this point is that she in substance testified that she had confidence in them and believed what they said to her, but in this connection she testified also that she would not have consummated the deal but for the statements made to her by the defendant."

It is unquestionably settled in this State that where evidence is introduced over an appellant's objections, some of which is admissible and some of it is not but all of it is together objected to, no error is shown. That in order to point out any error, the objection must be specifically to the particular portion which is inadmissible. Martin v. State, 189 S.W. Rep., 266, and these cases cited therein: Ortiz v. State,68 Tex. Crim. 526, 151 S.W. Rep., 1056; Payton v. State,35 Tex. Crim. 510, 34 S.W. Rep., 615; Gaines v. State, 37 S.W. Rep., 333; Tubb v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 858; Cabral v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 872; Hughes v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 912; Pinkerton v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 87; Boyd v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 67; Lopez v. State, 73 Tex.Crim. Rep., 166 S.W. Rep., 154; Francis v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 782; Zweig v. State, 74 Tex.Crim. Rep., 171 S.W. Rep., 751; Ghent v. State, 76 Tex.Crim. Rep., 176 S.W. Rep., 568; Aven v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 82; 1 Thomp. on Tr. (2d ed.), sec. 696. There can be no question but that said schedule showing appellant's prior indebtedness was admissible even if some of the items of subsequent indebtedness may not have been admissible. The court's ruling was correct.

By another bill it is shown that appellant objected to the State's proving by appellant's said brother, R.S. (Bob) Whitehead on cross-examination that they had bought from another of their brothers in March, 1915, a tract of land on credit and gave their note to him for $7000, and to further secure it besides being a vendor's lien on the land they at the time executed to him a mortgage on all of their personal property, which included the mare and mule that they and appellant had obtained from Miss Ada Karnes. This testimony under the circumstances of this case and the bill as explained and qualified by the judge, which he accepted, and which is borne out by the record, was admissible. In explaining and qualifying the bill the court said:

"The testimony objected to and set out in the bill as to the $7000 note was elicited by the State on cross-examination of the defendant's witness Bob Whitehead, and proved by said witness that he and the defendant in March, 1915, executed a note to their brother for $7000, the same being a vendor's lien note and also secured said vendor's lien note by a mortgage covering all the personal property of the defendant and Bob Whitehead, and that after executing said mortgage that they disposed of practically all of it and then deeded the place back to their brother in cancellation of said note and before the said note became due, and this was admitted by the court as throwing whatever light it would upon the intent of the defendant to defraud the prosecuting witness, Ada Karnes, and the court thought it was material as tending to show that shortly after the creation of this debt that the defendant put all of his property beyond the reach of his creditors, thus rendering the note absolutely worthless, which the defendant and R.S. Whitehead had given to the witness Ada Karnes.

"That said testimony was also admissible on cross-examination for the purpose of showing the interest, the bias, and the credibility of the testimony of the witness R.S. Whitehead, and showing his relation to the defendant, and bearing upon his credibility.

"The court does not certify to the correctness of the statement in said bill as to the testimony of the State's witness Ada Karnes, as the statements made in the bill as to the testimony of said witness consist more or less as to the defendant's conclusion as to what she testified.

"The witness Ada Karnes did testify that she talked with Lancaster, Zweifel and Luring in regard to the proposed transaction with the defendant, but she stated that at the time she took the note that she relied upon what the defendant told her as to his financial condition and would not have taken the unsecured note of the defendant and his brother, R.S. Whitehead, for her property but for the statements made to her by the defendant as to their financial condition at the time the said note was executed.

"The witness Ada Karnes did not testify that she knew the defendant owed Mike Luring at the time she took the note but she said she knew he had been trading at Luring's store and having articles charged occasionally, and that she knew nothing about what he owed, except what he, the defendant, told her. That she had nothing to do with the books at Luring's store. That she did not know whether he had settled the account or not. The bill is allowed with the foregoing explanation."

By another bill appellant complains of the court's action in permitting the State to introduce in evidence the summary of the schedule of appellant and R.S. Whitehead in said bankrupt proceedings. Under the explanation and qualification by the court of said bill said evidence was admissible and the action of the court correct. The court's explanation, accepted by appellant, was this:

"The indictment alleged that the defendant represented to the prosecuting witness that he had a number of items of property set out in the indictment and that he did not owe anyone, that the prosecuting witness relied on his statements that he was not indebted and took the unsecured note of the defendant and R.S. Whitehead for a horse and mule of the value of $175 and that the defendant's representation that he did not owe anyone were false, and that he in fact did owe large sums of money aggregating more than $5000, and was at said time insolvent and that the other maker of said note, R.S. Whitehead, likewise was insolvent. The court admitted the summary of the schedules in bankruptcy filed by the defendant and R.S. Whitehead after it had been shown that said schedules had been signed and sworn to by the defendant and R.S. Whitehead as showing, first, that the representations made by the defendant were untrue, and the schedules show this representation to be untrue and to show that both the defendant and R.S. Whitehead were at the time of the execution of said note insolvent and said schedules did show that both the defendant and R.S. Whitehead were insolvent at the time of the execution of said note. Being voluntary bankrupts the court thought the schedules admissible under the above facts as admissions of defendant."

The only other question necessary to be discussed is appellant's bill wherein he objected to what he claims was an omission in the court's charge and in connection therewith the refusal of his special charge on the subject. The court explained and qualified his bill presenting these matters, as follows:

"The court charged the jury in substance that before the defendant could be convicted they must believe beyond a reasonable doubt that in parting with the title of her property to the defendant she must have relied upon and been induced by the statement alleged to be false before a conviction could be had, and in substance gave the special charges requested by the defendant and met all the exceptions to the charge save and except the possible one embodied in a special charge to the effect that Ada Karnes must have relied solely and alone upon the statements made to her by the defendant. The statement contained in the bill as to testimony of the witness Ada Karnes on cross-examination in so far as set out in question and answer form is certified to as correct but that portion of her testimony appearing in the bill of exceptions which is not in question and answer style I do not certify as being correct but refer to the statement of facts on this point."

The question raised by this assignment is whether or not the false representations of appellant to Miss Ada Karnes upon which she relied and which she believed, and without which she would not have parted with the title and possession of her said mare and mule to appellant, was the sole and only cause which induced her to so part with the title and possession of her property to appellant. Appellant insists that she must have so relied solely and alone before he could be convicted.

Our statute (art. 1421, P.C.) prescribing what is swindling: Swindling is the acquisition of any personal property 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.

It will be seen by this that our statute does not require by direct enactment nor by any proper inference therefrom that the false, etc., pretense or representation whereby one acquires the personal property of another shall be the sole and only inducing cause whereby such other is induced to and does part with the title and possession of his property. This court, and no other, has the right to inject into a statute what the Legislature has not enacted therein. No court has the right to add to or take from any statute prescribing an offense. If the Legislature in enacting this statute had intended that such false, etc., pretense or representation should be the sole and only means whereby one should be guilty of swindling another, it could and would have said so in plain and clear language, but it did not say so, and this court, and no other, can legally inject into it any such language either in specific words or by implication. Such requisite as is contended for by appellant herein is directly held against him by every modern or other American text-book writer.

In 19 Cyc., 407 (sub. b) it is laid down: "Although the pretense must be an inducing cause of the owner's parting with his property, it need not be the sole inducing cause; it is sufficient if it had material influence in inducing the owner to part with his property although he was also influenced in part by other causes." In support of this text cases are cited from Alabama, Arkansas, California, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Virginia, Washington and Wyoming, and also from England and Canada. From many of these States and from England are cited more than one case — in some instances, several cases. An examination has not been made of all of these decisions from these different States and countries, but a good many of them have been examined, and in every instance they support the text in Cyc., and many of them discuss more fully the question.

Precisely the same is laid down as the law by such great and eminent text-book writers as Bishop and Wharton. 2 Bishop's New Crim. Law, sec. 461; 2 Wharton's Crim. Law, sec. 1440. Mr. Bishop says: "All the decisions affirm that the false pretense need not have been the only inducement." Mr. Wharton says: "To require that the belief (in the false representation) should be the exclusive motive would exclude a conviction in any case; for in no case is any motive exclusive." Many of the cases from the States above enumerated are to precisely the same effect. It is unnecessary to encumber this opinion with quotations further from the authorities above cited.

The court's charge on this point required the jury to believe everything that was necessary or proper beyond a reasonable doubt before they could convict appellant. Appellant's special charge requested on this subject was correctly refused, because it did not present the law applicable to the point nor in this case.

On this point appellant only cited and relied upon two decisions of this court, Blum v. State, 20 Texas Crim. App., 578, and McDaniel v. State, 63 Tex.Crim. Rep.. In neither of those cases did the question arise, nor was the point decided.

In the Blum case Presiding Judge White, who wrote the opinion for the court, said: "The sole question to be determined is, do the facts averred and the facts as proven constitute swindling?" Then he states the facts proven, which were to this effect: Blum had been in the habit of buying goods from Goodman, the prosecutor, and others upon credit prior to December 21st. He had used in his bakery and grocery business something over $1800 belonging to his wife and step-daughter. To pay them this debt, he on December 1st executed a deed to them of all of his property. This deed was executed in the forenoon, and when he left it with the clerk for registration he requested him to say nothing about it, as if known, it might affect or hurt him in his business. The same day and subsequently to this his wife and father-in-law started out on quite an extensive purchasing tour, visiting several stores and buying quite a quantity of goods at each, regardless of the price and having the bills charged to Blum. He was not present in a single instance when these goods were thus bought. When Goodman sold these goods, from his previous dealings with Blum and representations previously made to him by Blum and the fact that he was ignorant of his said sale of his property to his wife and step-daughter, he was still of the impression and belief that Blum owned said property and would not have extended him credit had he known that such was not the case. Under this state of fact, the court held that they were not sufficient to sustain a conviction. The court said: "No false pretenses in words are claimed to have been made by Blum; for he was not present in person and no false pretenses and declarations are shown to have been made by his wife and father-in-law, who acted as his agents in the purchase of the goods. That Goodman may have entertained the opinion that Blum still owned the property in the bakery and grocery and made the sale upon the belief that he still owned said property can not affect the question, unless the acts of the parties purchasing the goods induced that belief at the time. It was simply an error of opinion on his part; and a knowledge of the fact that he was acting upon such belief or opinion without correcting it will not subject him or his agents to a charge of having made a false pretense by withholding the information which would have corrected his belief. It was his own opinion as to the existence of a fact which did not exist and not the acts, declarations or representations of the parties with whom he was trading which caused him to be deceived." So that it is seen clearly that the point at issue was not whether Goodman in that case relied solely and alone upon any representations made to him by Blum, because the court specifically holds that as a matter of fact Blum made no representations to him at all, nor did his agents, his wife and father-in-law. However, in discussing the law generally, Judge White did state that the old English writer, Mr. Archbold, in his work on criminal practice and pleading, had said that it must appear by the evidence that the prosecutor parted with his title by means of the false pretenses alleged and that alone, but he immediately states that several States had held directly the reverse, citing several of the cases on that point collated by Cyc., above cited. It does not appear from the decision in the Blum case that it was either the opinion of Judge White or the court that Mr. Archbold had announced the correct rule, but, on the contrary, that the reverse of that, as held by the several decisions cited, was the true and correct rule.

What is said about the Blum decision is also applicable to the McDaniel decision. A reading of that case will demonstrate that the point at issue in this case was not at issue in that case but that the holding in that case and the opinion demonstrate that the alleged swindled party did not and could not have relied upon the claimed alleged false pretense, etc., and the case was reversed solely on that account.

The judgment is affirmed.

Affirmed.

ON REHEARING. May 9, 1917.