Johnson v. State

Appellant's complaint resolves itself into the proposition that the facts herein show a swindle, if anything, rather than a theft by false pretext in that the testimony shows a passing of both title and possession, which makes up the constituent elements of a swindle and not a theft. As authority for such proposition appellant offers the cases of Slack v. State,13 S.W.2d 113; Price v. State, 91 S.W. 571; Elbury v. State,25 S.W.2d 847; Legler v. State, 262 S.W. 478, 97 Tex. Crim. 465; Arnold v. State, 176 S.W. 159; Lewis v. State,171 S.W. 217; Bink v. State, 98 S.W. 249; Segal v. State, 265 S.W. 911.

Unquestionably this doctrine of the transfer of both title and possession would constitute the offense of swindling provided such transfer was caused by a false material statement as to some past or present fact. However if such a statement consisted not only of the just above mentioned characteristics as well as some future fact or promise, the offense could be taken out of the domain of swindling, and fall into the classification of theft as set forth in Art. 1413, P. C., and if the accusation proven should perchance fall into the domain of either, then resort can be had to Art. 1549, P. C., which provides that if such accusation constitutes the offense of swindling as well as a theft by false pretext, the guilty person may be prosecuted for the latter offense. Anderson v. State, 77 Tex.Crim. R., 177 S.W. 85.

The fallacy relative to the distinction between swindling and theft by false pretext being the delivery or not of title, has long since been departed from by this court in the following cases: De Blanc v. State, 37 S.W.2d 1024; White v. State,58 S.W.2d 530; Contreras v. State, 39 S.W.2d 62; Sherman v. State, 62 S.W.2d 146; Hoovel v. State, 69 S.W.2d 104; Haley v. State, 75 S.W.2d 272; Baldwin v. State, 104 S.W.2d 872; Lovine v. State, 122 S.W.2d 1069; New v. State,83 S.W.2d 668.

In De Blanc v. State, supra, Judge Morrow writes an exhaustive opinion on the difference between theft and swindling, and discusses many cases, and there refuses to follow the doctrine that the passing of title as well as possession is the line of demarcation between swindling and theft; it is also therein shown that if the two offenses are both found in the facts, then Art. 1549, P. C. resolves the prosecution under the theft statute.

The remaining cases above cited follow the doctrine laid down in the De Blanc case, supra.

We observe that the injured party in this cause testified that she not only was to have her money returned to her in a weekly wage, but also was to receive a one-third interest in certain property when the $750.00 had been paid back to her.

We think this case is one typically illustrating the operation of Art. 1549, P. C. While the facts herein might uphold a prosecution for swindling in that it was claimed by the complainant that appellant falsely represented to her that he owned certain fixtures that went into the property of the theater and tavern company, which he did not own, he also told her that upon a repayment to her in weekly wage of the money paid to him she would own one-third of these properties going to make up such company. Under the operation of such article, the fact that an element of swindling might have entered into the transaction would not keep the same from being a theft by false pretext, if such pretext also was present.

We think this matter was properly disposed of in the original opinion, and the motion is overruled.