Fleenor v. State , 113 Tex. Crim. 546 ( 1929 )

Conviction for swindling; punishment, two years in the penitentiary.

Mr. Underwood was induced by appellant to endorse a note for $880.00 of date January 24, 1928, theretofore made by appellant and his wife to the Motor Supply Corporation. Appellant was president and general manager of said corporation which bought and sold cars at Whitedeer, Carson county, Texas. Underwood and Crume were stockholders in said corporation and lived at Amarillo some forty miles from Whitedeer. On the occasion in question appellant came to Amarillo with several notes claimed to have been taken by him in the course of the conduct of the business of said company for cars sold by it, among others the note in question, which he said represented the proceeds in whole or in part of a Dodge Victory Six Sedan bought by himself and wife from said company. These notes he wished to sell. Mr. Beasley agreed to buy the notes if Underwood and Crume would personally endorse them. Appellant stated to Beasley, Underwood and Crume that he and his wife had bought the Victory Six Sedan referred to from the corporation and had executed the $880.00 note in payment therefor, and had also executed a chattel mortgage upon said car, and further that he purposed keeping said car at the headquarters of the corporation, using it for the dual purpose of private service to himself and wife and as a show car for the company. Relying on appellant's statement Underwood and Crume personally endorsed the $880.00 note, and Beasley bought it from appellant. Later it appears appellant made two small partial payments on this note, after which Underwood and Crume were called upon to pay the balance approximating $700.00, each paying half of said unpaid balance.

It was shown on this trial without contradiction that at the time of the alleged sale, the execution of the note and mortgage, and also at the time of the endorsement of the note by Underwood, neither appellant nor his wife had such car, nor did the corporation sell same to them. The proof was that appellant, as such manager, bought a Victory Six Dodge Sedan, the motor and engine numbers corresponding to those in said mortgage, early in January, 1928, from Mr. Cullum of Amarillo, — but that on January 18, 1928, two weeks before appellant got Underwood's endorsement aforesaid, Mr. Cullum took said car back and gave the corporation credit for it, and that appellant at no time thereafter owned or possessed any such car.

The indictment herein was attacked in a motion to quash, and its invalidity asserted again in a motion in arrest of judgment, on the ground that it did not set out in haec verba the mortgage mentioned. We do not think, under the facts of this case, that it was necessary to so set it out. Said mortgage was substantially referred to and described in the indictment. The note whose endorsement by Underwood was the basis of this prosecution, was set out in haec verba. We do not think it was necessary for the State to plead its evidence. Proof of the execution of the note, that it was not given in the purchase of any car, that appellant had no such car, had bought none, together with proof that the mortgage substantially described in the indictment had behind it no valid transaction and no car upon which it retained any lien, seems to sufficiently make out the case. Moore v. State,81 Tex. Crim. 606.

Bill of exceptions No. 1 brings forward objection to the introduction of the note, the endorsement of which forms the basis of the charge herein. Appellant claimed there was a variance between the note set out in the indictment and the one offered in testimony, because the latter bore an endorsement other than the one referred to. Same was but the endorsement of the Motor Supply Company by appellant as manager and of appellant personally. Under the facts of this case it was not necessary to set out the endorsement, and there was no variance.

Bill of exceptions No. 2 was taken to the testimony of Mr. Cullum who had gotten from appellant the car for the purchase of which appellant represented that he had given the note in question prior to securing the endorsement of Mr. Underwood thereon. Mr. Cullum swore to the motor and engine numbers of said car and that he had checked said numbers with the invoice of the car. The objection was that he was testifying to these matters solely upon reference to the contents of the invoice and not from personal knowledge. Other parts of the testimony of said witness make plain that he swore to the correctness of the invoice, and that before taking the witness stand he had checked the numbers on the car with those in the invoice and knew them to be correct. It would make no difference who made the invoice if witness knew from comparison that it was correct.

Bill of exceptions No. 3 was to the introduction of the invoice referred to. There was absolutely no question raised on this trial of the fact that appellant had gotten the car in question prior to the time that he let it go to Mr. Cullum, and prior to the time that he induced Mr. Underwood to endorse said note in order that he might negotiate same; and that also he did not have the car in question in his possession, or in the possession of the Motor Supply Company at the time he secured said endorsement. In view of these facts the objections presented in bill of exceptions No. 3 seem trivial.

If we understand bill of exceptions No. 4, it complains of remarks of the court made during the taking of testimony. Witness Underwood said that he signed the other notes, thinking in each instance same were secured. Some objection was made to this testimony, and the court asked if witness had said he was not secured. Appellant's counsel assured the court that the matter was not harmful. The court thereupon told the jury if witness said he was not secured as to the other notes, they could not consider such statement for any purpose. Appellant's counsel again said the matter was immaterial. The court said he did not know whether it was material or not, but that such part as he had referred to was inadmissible, whereupon appellant took a bill of exceptions. We are of opinion that no error is shown by such bill.

Complaint is made in bills of exception Nos. 5 and 6 of argument of State's counsel. Bill No. 5 is qualified so as to make it doubtful whether the argument was in response to that of appellant's counsel or not. We think the argument was improper, but the trial court instructed the jury not to consider it, and the evidence of guilt in this case being plain and conclusive, and the verdict only fixing the minimum penalty, we would not incline to the view that the argument referred to could have influenced the verdict. We have often held that where there could be but one conclusion reached under the law and facts in a particular case, and the jury had inflicted the lowest penalty, we would not reverse for erroneous argument. What we have just said applies with equal force to the complaint in bill of exceptions No. 6.

We have examined each of the five refused special charges. We find no facts in the record calling for the submission of the issue contained in requested instruction No. 5, and the others seem not to present correct legal propositions.

The charge was excepted to for failure to give affirmative instructions regarding the defensive theory. In as much as the accused introduced no testimony, it seems not unlikely the trial court was unable to determine what, if any, was the defensive theory. Special charge No. 6, which was given, may have been deemed sufficient to meet this exception.

We think the testimony ample to support the judgment. Nothing can be plainer than that on February 4, 1928, appellant had no Victory Six Sedan, and that hence his executed note for such car was a fraud. All witnesses swear that on the occasion of the endorsement of said note by Underwood, appellant said he had the car in his possession, — that he and his wife had bought it from the company, and that the note and mortgage referred to had been executed by them for same. No one questioned the fact that by reason of such endorsement Underwood was defrauded, and thereafter had to pay several hundred dollars. Baker v. State, 14 Texas Crim. App. 332; La Moyne v. State, 53 Tex.Crim. Rep..

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.