Medders v. State , 54 Tex. Crim. 494 ( 1908 )

This is a companion case to Baxter v. State, reported in51 Tex. Crim. 576; 105 S.W. Rep., 195.

The indictment charges appellant with swindling in that he made false representations to certain officers of the German American National Bank at Mason, the officers' names being Lemburg, Durst and White, White being vice-president, and one of the other named parties being cashier and one assistant cashier. Appellant and Baxter were seeking a loan of one thousand dollars, and represented to the officers of the bank that he was the owner of four sections of land located near the town of Voca in McCullough County; that said land was unincumbered; that he had a contract with one Martin to "put up" for him a bunch of cattle; that he desired to use the money for the purpose of filling his contract; he further represented that R.L. Baxter was the owner of four sections of land located near the town of Voca, and that this land was also unincumbered; he further represented that he desired to borrow the money for a period of ten days, and that he and Baxter would execute a note due in thirty days payable to the bank. On these representations and the further representation as to the solvency of himself and Baxter above their homestead exemptions to satisfy the debt or refund the thousand dollars, the bank let them have the money. Then followed the allegation of the falsity of the statements, etc. White testified in substance as charged in the indictment, and in addition that the parties stated they would secure the signature of one Stiles as surety, also a resident of McCullough County. They took the note away with them, Stiles signed it, and it was returned to the bank; whereupon the bank placed to Baxter's credit one thousand dollars less one month's interest, which was a part of the contract. This money was to be checked out over Baxter's name. Several checks were introduced in evidence signed by Baxter per appellant. The proof shows that the parties had no land at the time, except Baxter owned 160 acres which he occupied as a homestead, for which he had not paid. This perhaps is a sufficient statement of the case. A similar indictment was held good in Baxter's case, and we are of opinion that this indictment is sufficient.

Appellant contends that neither he nor Baxter received any money of any sort, and that while the money was placed to the credit of Baxter, it created only the relation of creditor and debtor as between Baxter and the bank, and, therefore, no money was in fact obtained. We have held in prior cases this proposition is not sound, therefore we deem it unnecessary to review that question.

Nor is the contention of appellant that the court should not have charged in regard to principals correct. Under the facts the parties were acting together and both present. Medders knew the condition of things and represented himself to be a party to the contract for the delivery of the cattle, and this money was sought to relieve a debt on the cattle in order that they might consummate the trade with Martin. They were both present and appellant did some of the talking, made some of the representations and was acting with Baxter. White is corroborated by testimony of other bank officers. This made appellant as much a party to the transaction as it did Baxter. Other facts in the record show that appellant had no such land as he represented to have and he knew that Baxter did not own such land. The charge in regard to principals was not error.

Appellant depended largely upon the theory that as the indictment charged him with obtaining current money of the United States, that the case was not made out; in fact, that there was a variance between the allegation in the indictment and the evidence introduced because of the fact that no money really passed between the parties, and the passing to Baxter's credit the one thousand dollars less the one month's interest was not sufficient to show a reception of money. As stated, we do not think there is any merit in this contention. It was as much a money transaction by passing the money to the credit of Baxter as if he in fact had received the money and placed it back in the bank, or had received the money and carried it away. It changed the possession and title to the money from the bank to Baxter. The court, therefore, did not err in refusing appellant's requested instruction covering this contention.

After a careful review of the entire record, we are of opinion that it presents no such error as requires a reversal of the judgment, which is therefore affirmed.

Affirmed.

ON MOTION FOR REHEARING. November 11, 1908.