Martin v. State , 36 Tex. Crim. 125 ( 1896 )

Appellant was convicted of swindling, and his punishment assessed at two years in the penitentiary, and he prosecutes this appeal. No motion was made in the court below to quash the indictment, and the matter is presented for the first time in this court. The indictment alleges the swindle in this case to consist of a check drawn by the appellant, he signing the name of Martin Siler, for $178, in favor of W.S. Dunmore — said check being drawn on the Fifth National Bank of San Antonio, Texas, and, in connection therewith, the representation by the appellant to said Dunmore that he "would have no trouble to get his (the said W.S. Dunmore's) on his (said W.S. Dunmore's) presenting the said draft to the said bank;" and that, by means of said check or draft and representations, the defendant induced the said Dunmore to sell and deliver to him twenty head of cattle, valued at $178. The traverse of the false pretenses set out was "that in fact and in truth, that said draft was not of any value, and the said Dunmore could not get any money upon the presentation of the same to the Fifth National Bank of San Antonio, Texas, because the drawers of the said draft, to-wit: Martin Siler, had no money in said bank on the date said draft was drawn; neither was the said J.H. Martin authorized by the said bank, on the date said draft was drawn, to draw drafts on the said bank, under the firm name of Martin Siler." The pretenses upon which swindling can be predicated must relate to existing facts or past events. Mere false promises or false professions of intention, though acted upon, are not sufficient. See, Allen v. State, 16 Tex.Crim. App., 150. It will be noticed that the indictment does not charge that Martin represented to Dunmore that he or the firm of Martin Siler had money in the bank at San Antonio at the time, or that, not having money in said bank, they were authorized to draw checks on the same, and they would be paid. The traverse allegations are to this effect. The fraudulent statement is that Dunmore would have no trouble in getting his (Dunmore's) money at the bank. Suppose that, at the time, the firm of Martin Siler had money in said bank, and the bank afterwards failed, and that Dunmore had been put to trouble to get his money, and in the end lost it, or a part of it; would it have been swindling? We apprehend not. Again, suppose the appellant had no funds in the bank, but had some existing arrangements with the bank, by which he was authorized to draw checks on it, but, on some account, subsequently a hitch occurred, and the bank refused to honor his checks, and Dunmore should encounter trouble in collecting the money; would this have been swindling? We do not think so. The representation here made, as it appears, was not to an existing fact, but related to a future event, and was in the nature of a representation or promise that the drawee would have no trouble in obtaining the money on the check. No doubt, Dunmore understood by the suggestion that the defendant had money in said bank, or was authorized to draw against it; and, doubtless, the appellant intended that he should so understand him. The indictment, however, contains no allegations to this effect, and no innuendoes conveying this meaning; the sole averment being as stated above. In our opinion, before a defendant can be convicted of the offense of swindling, there must be a distinct and certain representation of an existing fact, and the indictment must show such certain and distinct representation of the fact, either past or present; and sometimes it may occur that representations, in order to be rendered certain and distinct, should be accompanied by appropriate innuendoes. As stated, no such are used in this case; and the bare statement of the appellant, in connection with the delivery of the draft to Dunmore, that he would have no trouble in getting his money, was not, in our view, equivalent to representing that he then had money in said bank, or that he was authorized to draw against it. There is another question raised by the appellant in this case, which is fatal to the conviction. The court admitted in evidence before the jury another alleged fraudulent transaction between the appellant and another party, of the same character as that charged in the indictment in this case, to-wit: with one Jess Gunn; and still another transaction of the same character was admitted in evidence, being a transaction between one Alex. Harrison and the defendant. The court, in its charge, failed to limit the purpose and object of this testimony. Appellant saved a bill of exceptions to the refusal of the court to properly limit this testimony. It was the duty of the court to have so limited it, without any request or exception; and, in order to revise the action of the court in this regard, an exception was not necessary. See, Reno v. State, 25 Tex.Crim. App., 110; Barnes v. State, 28 Tex.Crim. App., 30; Carter v. State, 23 Tex.Crim. App., 508; Mayfield v. State, 23 Tex.Crim. App., 645; Alexander v. State, 21 Tex.Crim. App., 407; Holmes v. State, 20 Tex. Crim, App., 509; Kelley v. State, 18 Tex.Crim.

App., 262; House v. State, 16 Tex.Crim. App., 32; Barton v. State, 28 Tex.Crim. App., 484; Washington v. State, 23 Tex.Crim. App., 338; Maines v. State, 23 Tex.Crim. App., 568; Davidson v. State, 22 Tex.Crim. App., 382; Higgenbotham v. State, 24 Tex.Crim. App., 505. The judgment is reversed, and the cause remanded.

Reversed and Remanded.