DocketNumber: No. 15537.
Citation Numbers: 58 S.W.2d 530, 123 Tex. Crim. 282
Judges: Christian, Lattimore
Filed Date: 2/22/1933
Status: Precedential
Modified Date: 10/19/2024
The offense is theft by false pretext; the punishment, confinement in the penitentiary for six years.
The conviction is under an ordinary indictment for theft, it being charged that appellant fraudulently took from the possession of Mrs. M. A. Biglay five hundred dollars in money.
The testimony of the state was, in substance, as follows: Appellant was engaged in the real estate business in San Antonio, having an office in the Gunter building. C. A. Simpson was employed in the Gunter building as elevator operator. His salary was $75 a month. Appellant approached Simpson and told him that he had a chance to buy some lots, but could not take title to the property because of a judgment pending against him. He asked Simpson if he would take title to the property, saying that it was good clear property, and that if the lots were sold Simpson would receive half of the proceeds of the sale. He stated to Simpson that the property would sell for six hundred dollars a lot. He said he was going to trade for the lots, putting in his automobile as part payment. Further he told Simpson that it would not obligate him in any way if he took title to the property. On June 25, 1929, appellant had Simpson to execute a note for five hundred dollars and a deed of trust on two lots to secure the payment of the note. The note was made payable to Mrs. M. A. Biglay, the injured *Page 284 party. Simpson testified that he did not know when he signed the note that he was promising to pay Mrs. Biglay five hundred dollars, nor that he was executing a deed of trust to secure her in the payment of that amount. He said he signed the instruments, but appellant did not take his acknowledgment to the deed of trust. The deed of trust showed that Simpson acknowledged it before appellant as notary public. Simpson testified that he at no time received five hundred dollars for the execution of the note. Appellant secured from one Mills, who resided in Philadelphia, a quitclaim deed to the two lots described in the deed of trust, paying Mills therefor $25.00. Mills operated a syndicate engaged in buying up tax titles, and the two lots in question had been bought at tax sales. Simpson was named as grantee in the quitclaim deed. At the time appellant paid $25.00 for the quitclaim deed there were unpaid city taxes on the lots for a period of thirty years, aggregating approximately one hundred dollars. The testimony of the state was to the effect that the lots were not reasonably worth over fifty or sixty dollars, and that they were practically without value when the unpaid taxes were considered. Prior to the time appellant secured the quitclaim deed in the name of Simpson, appellant went to Mrs. Biglay, a widow 70 years of age, and stated to her that he had a party who desired a loan on two vacant lots, worth $400.00 each. Mrs. Biglay stated to appellant that she did not like to loan money on vacant lots. Appellant stated that the party desiring the loan was a good man; that he had known him for a long time; that he had made several loans to him; that he had always been prompt in repaying the money. Upon appellant's representation that the loan would be paid in a year, and that he would secure a note and deed of trust on the lots from the owner, Mrs. Biglay delivered to appellant her check for $500.00 payable to appellant. Appellant promised to have the note and deed of trust executed and delivered to Mrs. Biglay. Two or three days after delivering the check to appellant Mrs. Biglay went to Colorado and remained there until sometime in October. During the time she was in Colorado she received no evidences of the debt. When she returned to San Antonio, she called on appellant. After some delay, appellant delivered to her a note in the sum of five hundred dollars and a deed of trust on the two lots, both instruments being signed by C. A. Simpson. Appellant had placed the check in the bank to his credit and used the proceeds. The state's testimony was to the effect that Simpson did not have good title to the lots. *Page 285
Appellant denied that he stated to Mrs. Biglay that the loan was to be made to a third party, stating that he said to Mrs. Biglay that the loan would be made on the Simpson lots. His testimony was to the effect that the transaction was bona fide. He said that he had frequently made loans for Mrs. Biglay. He declared that he had had the instruments executed at the time he received the five hundred dollars and had delivered them to Mrs. Biglay as soon as she returned from Colorado. He testified that the lots were worth the amount he had represented.
The state's testimony was to the effect that Mrs. Biglay had been a widow for 40 years. She had, during the time of her widowhood, done various kinds of work, including housework in families, cooking, ironing, etc. She had worked in hotels and cafes. She had saved the money appellant obtained from her. According to the state's testimony, appellant did not repay the money.
Appellant contends that the offense of theft by false pretext is not supported by the testimony, his position apparently being that the offense, if any is shown, is swindling. We are unable to agree with this contention. In Anderson v. State,
In the present case, Mrs. Biglay delivered the check for five hundred dollars to appellant upon the representation by appellant that he would make a loan of the money to a party owning two lots, and secure from said party a note for five hundred dollars and a deed of trust on the lots to secure the payment of *Page 286 the note. Appellant did not make the loan. On the contrary, he appropriated the money to his own use and benefit. After appropriating the money, he delivered Simpson's note and deed of trust to Mrs. Biglay.
In Rundell v. State,
Article 1413, Penal Code, relating to theft, reads as follows: "The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete."
Article 1549, Penal Code, 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."
We quote from DeBlanc v. State,
The indictment charged that appellant obtained from Mrs. Biglay five hundred dollars in money, while the evidence showed that he received from Mrs. Biglay a check for the amount of five hundred dollars, which he deposited in the bank to his own credit, and which was thereafter paid. Appellant contends that there was a fatal variance between the allegations of the indictment and the proof with respect to the property obtained by him from the injured party. In Wimer v. State,
Appellant contends that the court in its charge permitted *Page 288 a conviction on any kind of false pretext, and failed to restrict the consideration of the jury to specific false pretexts. There were no objections to the charge, and no special charge on the subject. Article 658, C. C. P., provides that before the charge is read to the jury the defendant or his counsel shall have a reasonable time to examine same and that he shall present his objections thereto in writing, distinctly specifying each ground of objection. Article 666, C. C. P., requires that all objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial. We are unable to reach the conclusion that the charge presents fundamental error.
The judgment is 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.