Haley v. State ( 1934 )

Appellant obtained $200.00 from Mrs. Doak upon the false representation to the effect that he had associations with the police which would enable him to recover her lost money.

Appellant insists that the conviction must be reversed for the reason that the facts show a case of swindling and not a case of theft. He supports his contention with the citation of several decisions of this court, notably, Arnold v. State,176 S.W. 159; Segal v. State, 265 S.W. 911; Slack v. State,13 S.W.2d 113; Elbury v. State, 25 S.W.2d 846; Pittman v. State, 27 S.W.2d 240. The Arnold case, supra, and perhaps others drew a distinction between the offense of theft by false pretext and swindling which apparently overlooked the law embraced in article 1549, P. C., 1925, which reads as follows: "Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in such manner as to come within the meaning of theft or some other offense the rules herein prescribed with regard to swindling shall not be understood to take any such case out of the operation of the law which defines any such other offense."

In the case of Witherspoon v. State, 37 S.W. 433, it is held, if the fraud charged constitutes another offense defendant should be prosecuted for it and not for swindling.

A like ruling was made in Cline v. State, 43 Tex. 494; Bink v. State, 50 Tex.Crim. Rep., 98 S.W. 863; Hirshfield v. State, 11 Texas App., 207; also in DeBlanc v. State, 118 Tex. Crim. 628, and cases therein collated.

In the present instance the judgment of conviction implies that the check was obtained by false pretext, from which it follows that the prosecution was properly founded upon article 1549, supra, and not upon the statute defining and denouncing swindling, namely, article 1545, P. C., 1925.

Appellant contends that there was a failure to prove his appropriation of the $200.00 which he had obtained through the representation mentioned above. The alleged injured party, Mrs. Doak, testified that upon the representations made by the appellant she delivered to him a check for $200.00. She stated that the check was paid and charged to her account by the bank and bore the indorsement of M. C. Haley. The check was paid, as shown by indorsements, on September 24, 1932. She testified that she also delivered another check for $200.00 to be used as expense money. It was shown that she received at the hands of Mrs. Haley (wife of the appellant), the full amount of $400.00 which included the amount obtained by appellant under the false pretext and the expense money which was also advanced. The witness was unable to state from what source the money returned to her came further than to say that a check for that amount was handed to her by Mrs. Haley. It appears from the record that the money delivered to Mrs. Doak was paid to her on December 19, 1933, which was after the prosecution had been instituted. The fact that appellant had been instrumental in returning to Mrs. Doak an amount of money equivalent to that which he received from her was in evidence before the jury but is not a matter upon which this court would be required or authorized to annul the prosecution against the appellant or to reverse the case. At most, it was an effort after the offense had been committed to render the prosecution ineffectual. After indictment and pending prosecution, it is not within the power of the parties to the transaction to abate the prosecution. Such power is vested by law in the district attorney and the judge presiding in court. See article 577, C. C. P.; also Fleming v. State, 28 Texas App., 234, 12 S.W. 605; State v. Anderson, 26 S.W.2d 174, 119 Tex. 110.

The motion for rehearing is overruled.

Overruled.