Richardson v. State , 169 Tex. Crim. 244 ( 1960 )

MORRISON, Presiding Judge.

The offense is theft by false pretext; the punishment, five years.

Trial was had in Scurry County on a change of venure.

The injured party, a rancher in Borden County, testified that he had known appellant for some time and had sold him cattle on prior occasions, that payment in such cases had been by checks signed by appellant and drawn on a Plainview bank, that on the day charged in the indictment appellant came to his ranch, bought 48 head of cattle, and gave him a check in the sum of $9,111.20. He testified further that appellant told him on that occasion he was putting the cattle “on wheat-pasture,” that the check was returned unpaid, that he later personally presented the check to the bank on which it was drawn in Plainview but that he got no money. He stated that sometime later appellant told him he had sold the cattle and would bring him the money the next day but that he had never done so.

It was stipulated that appellant did not have on deposit in the bank in question sufficient funds to pay the check on the day it was given or at any time thereafter.

Appellant did not testify or offer any evidence in his own behalf.

Appellant contends that this evidence does not show a theft by false pretext.

We think the answer to his contention lies in the relatively recent case of Gibbs v. State, 158 Tex. Cr. Rep. 145, 253 S. W. 2d 1002. There, in almost an identical fact situation, we held that the prosecution might be maintained under an indictment charging theft and that there was sufficient evidence of the making of a false pretext.

The judgment is affirmed.