State v. Vickery

Decision Date01 January 1857
Citation19 Tex. 326
PartiesTHE STATE v. ALBERT VICKERY.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

In order to constitute the offense of obtaining money, goods, etc., under false pretenses, it is essential that the owner should have intended to part with the right of property; and it is this which distinguishes this offense from the crime of larceny, in cases of a constructive taking, where one, with a felonious intent to convert the goods to his own use, obtains possession of them by some trick or artifice.

To obtain the possession of a certificate and field notes, the property of another, from a surveyor, upon pretense of an interest in the land, and a desire to return the certificate and field notes to the general land office for patent, but really with a fraudulent intent to convert them, or to suffer the time for their return to expire, and then appropriate the land by other certificate or pre-emption claim, is larceny, and not obtaining chattels by false pretenses.

Appeal from Wood. Tried below before the Hon. Charles A. Frazer.

Charging part of indictment as follows: That Albert Vickery, late of the said county of Wood, laborer, being a person of vicious and disorderly habits, and fraudulently intending to defraud and swindle the heirs of St. Clair Patton, deceased, who are to the grand jurors unknown, out of the property hereinafter mentioned, on the 16th day of June, in the year of our Lord one thousand eight hundred and fifty-three, in the county of Wood aforesaid, with force and arms, fraudulently represented to Albert A. Nelson, district surveyor of Nacogdoches land district, that he, said Albert Vickery, was interested in a certain land certificate for six hundred and forty acres of land, issued to said St. Clair Patton, then and there being the property of the heirs of the said St. Clair Patton, which heirs are to the grand jurors unknown, said certificate being of the value of one hundred and fifty dollars; and also, that he was interested in the land and field notes of a survey of six hundred and forty acres of land, then and there situate in the said county of Wood, surveyed by virtue of the aforesaid land certificate, the property of the aforesaid heirs of St. Clair Patton, who are to the grand jurors unknown, and then of the value of one thousand dollars; and said Albert Vickery then and there falsely and fraudulently representing himself to be interested in said certificate and field notes of said survey, then and there by a written letter, desired the said Albert A. Nelson to deliver said certificate and field notes to him, the said Albert Vickery falsely and fraudulently pretending that he desired to send the said certificate and field notes on to the general land office at Austin before the thirty-first day of August, in the year of our Lord one thousand eight hundred and fifty-three, which said letter, then and there signed by the said Albert Vickery, and to the said grand jury now here shown and proven, is in substance as follows, to wit: State of Texas, county of Wood, June 16, 1853. Dear Sir--I wish, if you please, you would examine your office and see if the field notes of the surveys of land made in this county, for 640 acres each, that lie adjoining each other, and bounded on the west by W. Tollett's league No. 81, which lies on both sides of lake fork of Sabine river. One of the said surveys was made in the name of S. C. Patton, and the other was made in the name of W. H. Patton, No.--. The said surveys were made several years ago, and as I have an interest in them, and I am informed the law is, if the field notes are not returned to the general land office at Austin by the 31st day of August next, that the land will be vacant and liable to entry by any other person. If the field notes are lifted and sent on, all is right; and if they are not, I want to lift them; and if so, please send what your fees will be, and I will pay them myself, and send them on within the time allowed by law. If you will be as good as to give me the required information, I shall be under a particular obligation; besides, I will give you any compensation for your trouble you will claim, by mail, or first safe chance; or, if I come or send after them, I will reward you for your trouble. The Pattons made three surveys in a range north and south. The north one I have nothing to do with; and in so doing, you will confer a lasting favor on your friend, Albert Vickery.

Albert Nelson, General Surveyor of Nacogdoches District.”

And by means thereof, and by the false and fraudulent representations of the said Albert Vickery, he procured and induced the said Albert A. Nelson, the district surveyor aforesaid, general surveyor of Nacogdoches district, the said Albert A. Nelson then and there having the possession and control of said certificate and field notes, to deliver the same to him, the said Albert Vickery, the said Albert Vickery then and there not having any interest whatever in the said land certificate, field notes and land surveyed by virtue of said certificate; and then and there not having any right or authority from any...

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21 cases
  • Lewis v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 11, 1914
    ...if the mere possession of the property is parted with by means of the false pretext, it is theft. Articles 861, 674, Penal Code; State v. Vickery, 19 Tex. 326; May v. State, 15 Tex. App. 430; Sims v. State, 28 Tex. App. 447 ; Price v. State, 49 Tex. Cr. R. 131, 91 S. W. 571; Curtis v. State......
  • Akers v. Scofield, 12176.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 23, 1948
    ...on the other is that in the former case title to the property acquired never passes while in the latter case title does pass. State v. Vickery, 19 Tex. 326; Bink v. State, 50 Tex.Cr.R. 445, 98 S.W. 863; Lewis v. State, 75 Tex.Cr.R. 509, 171 S.W. 217; Gordon v. State, 85 Tex.Cir.R. 641, 214 ......
  • State v. Loser
    • United States
    • Iowa Supreme Court
    • July 11, 1905
    ...and not of the crime of cheating by false pretenses. State v. Anderson, supra; State v. Kube, 20 Wis. 217 (91 Am. Dec. 390); State v. Vickery, 19 Tex. 326; Com. v. Lannan, 153 Mass. 287 (26 N.E. 858, 11 L. A. 450, 25 Am. St. Rep. 629); Stinson v. People, 43 Ill. 397 (which is closely in poi......
  • Akers v. Scofield
    • United States
    • U.S. District Court — Western District of Texas
    • September 20, 1947
    ...on the other is that in the former case title to the property acquired never passes, while in the latter case title does pass. State v. Vickery, 19 Tex. 326; Bink v. State, 50 Tex.Cr.R. 445, 98 S.W. 863; Lewis v. State, 75 Tex.Cr.R. 509, 171 S.W. 217; Gordon v. State, 85 Tex.Cir.R. 641, 214......
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