Powell v. State , 44 Tex. Crim. 273 ( 1902 )

Appellant was convicted of theft, and given three years in the penitentiary.

Appellant made a motion to quash the second count in the indictment on the ground that the same sets up no offense against the laws of the State, and that there was a variance between the alleged false and fraudulent representations in the indictment and the traverse of said representations. Appellant has not called our attention to any variance between the allegations in said indictment, and we have found none. However, the trial court submitted only the first count to the jury, which charged theft, and this question need not be further considered.

Appellant excepted to the action of the court refusing to permit him to show by witness Smith Powell that before and at the time of defendant's arrest on this charge defendant had credit at the Waco State Bank of Waco, Texas, and that checks drawn by defendant would have been paid by said bank. This testimony was offered after the State had proven by prosecutor that to the best of his recollection defendant represented and stated to him that he had money and credit at the First National Bank of Waco, Texas, although he might have said the State National Bank of Waco, Texas. It is also shown in this connection that the charge of swindling was then pending against appellant, as well as the charge of theft. It occurs to us that, under the facts of this case, the testimony was material and relevant under either count in the indictment. It was admissible, in connection with the checks drawn by appellant and set out in the indictment, to show that the same were drawn in good faith, and evidenced a loan and transfer of the money and property of prosecutor to appellant, which would answer the first count in the indictment, as tending to prove that the prosecutor parted with his property, and not the mere possession thereof; and it would also tend to show that appellant was not guilty of a fraud or pretense in the transaction, and so be an answer to either count. We do not think the fact that the bank at Waco was the Waco State Bank, and that there was no such bank as the State National Bank of Waco, Texas, would render this testimony inadmissible. At least, this was a matter subject to explanation.

We further believe that the court should have given the special requested instruction asked by appellant; that is, if the jury believed from the evidence that defendant acted in good faith in borrowing the money described in the indictment, to acquit him. The State itself introduced John L. Barlow, who testified that appellant started or was getting ready to go with him to Waco to get the money to repay him when he was arrested. Of course the testimony setting up this defense, as it appears in the record, may be weak; but that is not a criterion for the court to refuse to instruct the jury on that phase of the defense. In this connection we would remark that, if appellant had been permitted to prove he had money subject to his order at Waco, this defense would have been much stronger, and, if that evidence had been admitted, we apprehend the court would not have refused to have affirmatively instructed upon that issue of the case.

We would further observe that, if appellant was guilty of any offense, it was not of theft, inasmuch as, to our minds, the facts show that prosecutor agreed to part with his property in the money as well as in the New York exchange. True, the witness Barlow says he expected to get the identical money and draft back, but this appears to have been because appellant represented to him that his hand at cards was the best, and would win the stakes. Evidently, if it was not the best, he could not hope to get the identical money and exchange back from defendant. Indeed, the physical facts show that he secured himself before he parted with his property. He took the precaution to assure himself that appellant had money at Waco. He examined his bank book, and then took checks of appellant for the money which he advanced to him. It does not matter that these checks were subsequently secured by appellant, and destroyed or mutilated. In his testimony he says distinctly that he was induced to part with the money to accommodate defendant as a friend, and that he would not have let him have the money if he had not drawn checks, and assured him that the hand was as good as the other one. We think the facts show that prosecutor parted with his property in the money and the exchange, and in such case it would not be theft. Cline v. State, 43 Tex. 494; Pitts v. State, 5 Texas Crim. App., 122; Curtis v. State,31 Tex. Crim. 39.

It is not necessary to discuss other matters, but, for the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

ON REHEARING.