Williams v. State

CHRISTIAN, Judge.

The offense is theft by false pretext; the punishment, confinement in the penitentiary for two years.

The trial was had in Midland County on a change of venue from Andrews County.

In August, 1936, Sam N. Smith, County Clerk of Andrews County, had in his possession thirteen bonds of the City of O’Donnell, which had been purchased by the County of Andrews. These bonds were of the par value of five hundred dollars each. Deciding that he wanted to be relieved of the responsibility of keeping the bonds, Mr. Smith conferred with the members of the commissioners’ court relative to the matter. Appellant was present at the time. Thereafter, during the latter part of August, 1936, appellant, who was at the time county attorney of Andrews County, approached Mr. Smith with the request that the bonds be delivered to him. Mr. Smith testified that appellant stated, to him that he (appellant) and the county judge were going to Midland and would carry the bonds to the bank at that place. Believing this representation to be true and that appellant would carry the bonds to the First National Bank of Midland, which was the county depository, for safekeeping, Smith delivered the bonds to appellant. Shortly thereafter appellant wrote letters to H. C. Burt and Company of Houston offering to sell them the bonds for a stated sum. The company bought the bonds for $1,625.00, appellant receiving the money. According to appellant’s confession, he did not deliver the money to Andrews County but converted it to his own use and benefit. A statement in the confession, which was not introduced by the State, but by appellant, was to the effect that Andrews County owed appellant more than the amount he received for the bonds, and had failed to pay him. The testimony of the State was sufficient to warrant the conclusion that such statement was false.

Appellant did not testify.

As we understand the testimony, Mr. Smith was induced to part with the possession of the bonds by the false pretext of appellant that he would carry them to the bank at Midland for safe keeping. Mr. Smith did not part with the title to the bonds. We think the testimony is sufficient to show that at the very time appellant induced Mr. Smith to surrender possession of the bonds to him he (appellant) intended to convert such bonds to his own use. Therefore the State’s testimony is deemed sufficient to sustain a conviction of theft under the provisions of Article 1413, P. C., that is, theft by false pretext. Article 1413, P. C., 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.”

See Roe v. State, 144 S. W. (2d) 1104.

Appellant’s bills of exception relative to argument of counsel for the State, as qualified by the trial court, fail to reflect error.

The judgment is 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.