Burck v. State

KRUEGER, Judge.

— Appellant was convicted of the offense of swindling, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

Appellant’s first complaint is that the court erred in overruling his motion to quash the indictment on the ground of repugnancy, in that, in one part of the indictment it charges that he obtained from Sheppard by means of false and fraudulent representations the sum of one hundred dollars and a note in the sum of seventy-five dollars of the value of seventy-five dollars and in another part of the same count it charges that he obtained from Sheppard twenty-five dollars in money and a note in the sum of seventy-five dollars. His main contention is that the two inconsistent statements could not be true, that is, that he received one hundred dollars and a note of seventy-five dollars from Sheppard and twenty-five dollars and a note in the sum of seventy-five dollars. We do not think that there is such repugnancy "as would vitiate the indictment. The description of the property obtained in each instance is alike. The only difference is in the amount of money which he is charged with having received from Sheppard. The variance is not such as would defeat the jurisdiction of the district court. If he obtained one hundred dollars in money and the note for seventy-five dollars, or only the note by the means charged, it would still constitute a felony. The value of the property which he received by the means charged is not a constituent element of the offense. It merely controls the punishment prescribed by law which may be inflicted. If he .had obtained but one dollar or some other kind of property having value by the means charged, it would nevertheless constitute the offense of swindling. The gravamen of the offense is the false and fraudulent representations by which he obtained property, whether it be much or little, as this would not affect or change the character of the offense. It is well settled in this State that if the constituent elements of the offense are so averred as to apprise the defendant of the charge against him, and to enable him to plead the judgment in bar of another prosecution for the same offense, it is sufficient. The State might have omitted entirely proof as to the money and have relied wholly on the note. See Jennings v. State, 88 Texas Crim. Rep., 639, and authorities there cited. However, we do not wish to be understood as approving such loose pleading.

Appellant’s next contention is that the testimony is insufficient to sustain his conviction. We cannot agree with him because the record shows that on or about the second day of January, 1936, appellant represented to J. L. Sheppard that one R. L. Brown of Dallas owned 475 acres of land out of the Martin Dunman Survey in Bosque County, Texas, which Brown had authorized him to lease. Sheppard, who believed said statements and representations made by appellant to him, relied thereon and made and entered into a contract with appellant by the terms of which Sheppard was to have the use of said land for the term of one year in consideration of one hundred dollars. Sheppard paid appellant twenty-five dollars in cash and made and delivered to him his promissory note in the sum of seventy-five dollars of the value of seventy-five dollars. R. L. Brown did not own said land and had not authorized appellant to lease it to anyone. The record title to said land was in Morris Jameson who declined to permit Sheppard to use said land under his contract with appellant. We deem the testimony sufficient to sustain the conviction.

Appellant’s next complaint is that the court erred in overruling his motion for a new trial. The order overruling the motion shows that the court heard evidence on the matters therein urged as grounds for a new trial. This evidence is not before this court. Hence the presumption prevails that the court’s action in overruling the motion was justified by the testimony adduced.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.