Noblitt v. State

Conviction is for swindling, the punishment being confinement in the penitentiary for a term of three years.

The charge was that appellant had secured from C. D. Lester, an officer of the First National Bank of Canyon, Texas, fifty dollars in payment of a check for that amount drawn against the First National Bank of Lamesa, Texas, by appellant, it being alleged that he did not have with the Lamesa bank sufficient funds to pay said check and had no good reason to believe it would be paid when presented in the ordinary course of business.

The facts developed that appellant was told by Lester that he would not cash the check unless it was endorsed; that at appellant's request Lester telephoned to Mrs. Savage who authorized the O. K. of the check and it was then paid. About two hours later Mrs. Savage for some reason evidently became uneasy about the matter and asked Lester to telephone the bank at Lamesa relative to the check. Upon doing so he received information that appellant had no account with said bank. Efforts were at once made to arrest appellant but was not effected for some time.

The contention is that the conviction should not stand, it being claimed that the fifty dollars was not paid to appellant upon faith of the check but that Lester was relying upon Mrs. Savage's O. K. and was induced to part with the money by that alone. The testimony of Lester makes it perfectly clear that he would not have cashed the check had it not been for the indorsement of Mrs. Savage. He made no inquiry of appellant with reference to whether he had money in the bank at Lamesa and appellant made no representations to him in that regard further than by act of drawing the check. Lester does testify that he relied upon the face of the check that it spoke the truth and that naturally he thought appellant had the money in the Lamesa bank, but that he paid little attention to him knowing Mrs. Savage's indorsement protected the bank, but said he would not have cashed the check had he known appellant did not have the money in the Lamesa bank, notwithstanding Mrs. Savage's indorsement, because he would have tried to protect her.

One of the essential elements of the offense of swindling is that the injured party in parting with his property relied upon and was deceived by the false pretenses of accused, which in the present instance was the representation by the act of drawing the check against the Lamesa bank that appellant had funds in that bank to protect the check. McDaniel v. State,53 Tex. Crim. 260. It is further true that it is not necessary that the false pretenses be the sole inducement which moves a person to part with his property, it being sufficient that they materially contributed to this end and that without them he would not have parted with it. Blum v. State, 20 Tex. Crim. 578, Smith v. State, 55 Miss. 513. Applying this principle to the present case we think the contention can not be upheld that the check was cashed solely upon Mrs. Savage's indorsement. The fact that the officer of the bank said he would not have paid it but for the indorsement does not militate against his further statement that he relied upon the check as speaking the truth and as indicating that appellant had an account at the Lamesa bank to protect it.

The judgment is affirmed.

Affirmed.

ON MOTON FOR REHEARING.