Taylor v. State , 89 Tex. Crim. 618 ( 1921 )

Conviction is for swindling; punishment fixed at confinement in the penitentiary for four years.

The facts from the State's point of view disclose that the appellant represented to the railway station agent at Logansport, Louisiana, that he possessed and desired to ship to Nacogdoches, Texas a carload of pipe which was situated at a switch near Logansport. A car having been placed for him, he reported to the agent that it was loaded and obtained from him a bill of lading showing the shipment. This bill of lading he later exchanged at Nacogdoches, Texas, for another, showing reshipment of the car to his own order at another point. He attached this new bill of lading to a draft for the sum of $1374.20 which he deposited with the bank at Nacogdoches for collection. The bank sent the draft to its correspondent at Beaumont where the drawees resided. The appellant afterwards exhibited to the bank at Nacogdoches a forged telegram purporting to be from the bank at Beaumont, advising that the draft, less $200 reserved for freight, had been paid. The bank at Nacodoches then advanced him against the draft $850 in money, advancements having been made in various sums and of different dates.

Preliminary to the trial, appellant, by motion, sought to have another case, which was pending against him in the same court, disposed of before going to trial in this one. In his motion he claimed that the other case was founded upon fictitious allegations; that the indictment found and held against him was for the purpose of preventing a verdict recommending a suspended sentence in this case. The motion was overruled, and so far as disclosed by the record, none of the alleged facts were established by proof. The motion setting up facts, while sworn to, was simply a pleading as basis for proof, and in support of the ruling of the trial court, the presumption must be indulged that the allegations were not proved. It may be added, however, that the pendency of the indictment in the other case would have been no impediment to appellant's availing himself of the suspended sentence law. It does not appear that he sought the suspension of his sentence. Any supposed wrong done him in maintaining the other case upon the docket would have been harmless unless used against him.

It is charged that the sum of money named in the indictment was $1374.20. The proof fixed the amount obtained at $850. This was not a material variance. Pones v. State, 43 Tex. Crim. 201; Green v. State, 86 S.W. Rep., 332; Jones v. State, 44 S.W. Rep., 162; Harris v. State, 34 Tex.Crim. Rep.; Cyc. of Law Procedure, Vol. 25, page 102; Grissom v. State, 40 Tex. Crim. 146; Davis v. State, 32 Tex.Crim. Rep.. It was not essential that the proof establish that the quantity of money received was that named in the indictment. That the amount taken being over $50 classified the offense as a felony.

It was, in our judgment, competent to prove that the car which the appellant represented to the agent that he loaded with pipe was, in fact, not loaded at all and circumstances were available to the State upon this issue. The testimony of the conductor, who was ordered to pick up the car, that he failed to do so because it was empty, was relevant. The appellant had obtained a bill of lading for a car of a certain number loaded with pipe. The bill of lading was issued upon his statement without inspection by the agent of the company. The substitute for his bill of lading, issued at Nacogdoches, describing the same car, was the basis of the alleged fraud. The burden was upon the State to show the fraudulent intent, and upon this point the testimony of the conductor that the car was empty and for that reason he refused to put it in his train was obviously admissible. That in connection therewith he stated that he had orders from the agent at Logansport to pick up the car would not work a reversal. If the declaration was not a part of the res gestae, it could not have been harmful for the reason that the same fact was proved, without objection, by the witness Price. The testimony of the conductor, describing the conditions surrounding the car indicating that it had not been loaded, were circumstances admissible upon the same principle that his direct statement that it contained no load became relevant.

Finding no error justifying a reversal, the judgment is affirmed.

Affirmed.

ON REHEARING. June 22, 1921.