Allen v. State

• Decision Date: 30 April 1924
• Docket Number: (No. 7845.)
• Citation: 261 S.W. 770
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

261 S.W. 770

ALLEN v. STATE.

(No. 7845.)

Court of Criminal Appeals of Texas.

April 30, 1924.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

J. M. Allen was convicted of swindling, and he appeals. Reversed.

Frank Judkins, of Eastland, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is swindling; punishment fixed at confinement in the penitentiary for a period of three years.

After the formal parties, the indictment charges as follows:

"J. M. Allen did then and there by means of false pretenses and fraudulent devices and fraudulent representations then and there knowingly made by him, the said J. M. Allen, to T. J. Earnest induce and cause the said T. J. Earnest to deliver to him the said J. M. Allen, and the said J. M. Allen did then and there by the means aforesaid acquire from the said T. J. Earnest the sum of $5,000, of the value of $5,000, * * * then and there being the personal property of and belonging to said T. J. Earnest, with the intent then and there on the part of him, the said J. M. Allen, to deprive the said T. J. Earnest of the value of the same and to appropriate the same to the use and benefit of him, the said J. M. Allen, when so acquired, and with the further intent on the part of the said J. M. Allen to then and there cheat, wrong, and defraud the said T. J. Earnest by means of giving, executing, and delivering to the said T. J. Earnest a promissory note of the tenor following: [The note is here set out.]"

"And the said J. M. Allen, in order to acquire the said money and the said check on the said promissory note, and in order to secure the payment of the said note to the said T. J. Earnest, did then and there make, execute, and deliver to the said T. J. Earnest a certain transfer of vendor's lien notes of the tenor following: [Here follows transfer of vendor's lien notes for $15,000, executed by Henry Roberts in favor of J. M. Allen in consideration of 435 acres of land conveyed to Henry Roberts by J. M. Allen by deed recorded in volume ____, p. ____, of Bell County Deed Records]."

From the transfer the following quotation is taken:

"I do hereby bind myself that the said note is the first and only lien on said land except a note for the sum of two thousand and no/100 dollars due the 1st of July, A. D. 1921, and that all payments, offsets, and credits to which said note is entitled do appear on the back of said note."

Copy of the note for $15,000 follows. It contains no description of the land other than the 435 acres situated in Bell county, conveyed to Henry Roberts by J. S. Allen.

The indictment also contains the following quotation:

"That as a part of the transaction and in order to induce the said T. J. Earnest to part with and to deliver to the said J. M. Allen * * * money * * * the said J. M. Allen further pretended and represented to the said T. J. Earnest then and there that there was no lien or incumbrance against the land described in the said vendor's lien note and described in the said deed from J. M. Allen to Henry Roberts except the sum of $2,000; and that the land therein described was very valuable land and lay between Belton, Bell county, Tex., and Temple, Bell county, Tex.; and that the said land was a fine farm and well worth $15,000; and that the said vendor's lien note above set out was well worth $15,000; and that the brother of the said J. M. Allen, to wit, A. H. Allen, had indorsed said vendor's lien note, and that the said S. H. Allen was then and there worth the sum of $200,000; that said J. M. Allen further represented then and there that Burkett, Anderson & Orr, a firm of attorneys of Eastland, Eastland county, Tex., had passed on the said vendor's lien note and the abstract of title to said land and that such firm of attorneys had said that said vendor's lien note was good and of the value of said $15,000; that the said J. M. Allen also then and there represented to the said T. J. Earnest that the Security State Bank & Trust Company, a bank in Eastland had passed on said note and had said that said vendor's lien note was good, and that such bank had offered for the said vendor's lien note the sum of $8,000 cash, but the said J. M. Allen did not desire to sell said note but only desired to place same as collateral security for the purpose of borrowing $5,000. That, relying on the said representations as aforesaid, made by the said J. M. Allen to the said T. J Earnest, the said T. J. Earnest delivered to the said J. M. Allen the said sum of $3,000 in money and the said check for $2,000 as aforesaid, and by reason of such representations, as aforesaid made by the said J. M. Allen to the said T. J. Earnest, the said J. M. Allen secured and acquired possession of the said sum of $3,000 in money and the said $2,000 check from the said T. J. Earnest. That in truth and in fact it was not true that the said sum of $2,000 was the only lien against the land described in said vendor's lien note and in the deed from J. M. Allen to Henry Roberts; and it was not then and there true that said land was a fine farm worth $15,000; and it was not then and there true that said land was valuable land, and lay between Belton, Tex., and Temple, Tex.; and, it was not true that the said S. H. Allen was then and there worth the sum of $200,000; and it was not true that Burkett, Anderson & Orr, a firm of attorneys of Eastland, Tex., had passed upon said vendor's lien note and had said that said vendor's lien note was good and of the value of $15,000; and it was not then and there true that the Security State Bank & Trust Company, a bank in Eastland, Tex., had passed on said note and had said that said vendor's lien note was good; and it was not true that such bank had offered the sum of...