Alvarez v. State

• Citation: 2 S.W.2d 849
• Decision Date: 11 January 1928
• Docket Number: (No. 11264.)
• Parties: ALVAREZ v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

2 S.W.2d 849

ALVAREZ v. STATE.

(No. 11264.)

Court of Criminal Appeals of Texas.

January 11, 1928.

Rehearing Denied February 29, 1928.

Commissioners' Decision.

Appeal from Criminal District Court, Nueces County; A. W. Cunningham, Judge.

Bertha Alvarez was convicted of fraudulent conversion of money, and she appeals. Affirmed.

B. D. Tarlton and Tarlton & Lowe, all of Corpus Christi, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Appellant was indicted and convicted under the first count of an indictment charging her with a fraudulent conversion of $260 in money, the property of Lillie Olivares, which money had theretofore come into her possession by virtue of a contract of hiring and borrowing with the said Lillie Olivares.

We are met at the outset with the contention that the facts make out a case of theft by false pretext, in that a fraudulent intent is conclusively shown to exist on the part of appellant at the very time the property was acquired, and that therefore she cannot be convicted under article 1429, P. C., which defines the offense commonly known as theft by bailee.

The evidence of the prosecuting witness is not entirely clear. It is deducible, however, therefrom that appellant, a kind of clairvoyant, represented to her that, if she would bring her thirteen $20 bills, she would bury same in a pot for 30 days, during which time the money and the dirt in the pot would absorb her disease and cure her. We quote a part of her testimony literally:

"She told me about my father being dead, and how we had to work for our living, and that I was pretty sick, and that she could cure me, and do me a whole lot of good, and said that this cure would be brought about by bringing her these thirteen $20 bills. She said that if I would bring her these thirteen $20 bills that she had to bury this money there, and keep it 30 days and that within 30 days I would see the difference. I let her have that money with the understanding that she would return it within 30 days, and that I would bring the pot back, and that she would open the pot, and give me the money to return it to the bank. When I got the money, I turned it over to her for the purpose of burying it in that box and pot. The understanding was that she was to borrow the money from me for the purpose of burying it in the pot. She took the money from me, and counted it in front of my presence. She was to take it and bury it, and that was the reason I took it to her there, because she was going to bury it in that pot."

It is further shown that appellant, after apparently sewing the money up in a bag, and placing it in the pot in the presence of witness, had the witness turn her back and pray, and told her that she (appellant) would have to go in a closet and do her work. While witness' back was turned and her eyes were closed in a fervent prayer, the appellant did actually do "her work"; that is, she apparently swapped bags, and traded witness a bunch of old newspapers for her thirteen $20 bills, as witness discovered about 10 days later when the scales of childish credulity had finally fallen from her eyes, and she looked for her buried treasure in the "magic" pot.

This testimony is, we think, sufficient to show all the elements necessary to support this prosecution, and we will not pause to consider whether the same also shows another offense. It may be true that appellant could have been prosecuted for the offense of theft by false pretext, but the law has not lodged with an accused the option to indicate or dictate for which offense he will be prosecuted, where a proven transaction shows him guilty of more than one offense.

As said by Judge Henderson in the case of Lewis v. State, 48 Tex. Cr. R. 311, 87 S. W. 831:

"Appellant's motion seems to be predicated on the idea that this prosecution should have been brought under article 877, Penal Code — the contention being that the evidence shows that the horses in question were hired, and that the state's evidence showed a conversion by the bailee without the consent of the owner and with the intent to deprive him of the value of the same. The fact that this prosecution might have been maintained under article 877, Penal Code, does not establish that the prosecution could not also be maintained under article 861, Penal Code, if the facts bring it within the latter article. The same transaction may be an offense under both statutes."

We do not think the case of Pickrell v. State, 60 Tex. Cr. R. 572, 132 S. W. 938, cited by appellant, announces necessarily a contrary rule, though there are some expressions, apparently dicta, in same with which we do not entirely agree, and, in so far as such are in conflict with the opinion herein expressed, they are hereby overruled.

The state could carve only once from this transaction, and this case was in a kind of twilight zone, where any decision made by the prosecuting attorney would have been subject to criticism by appellant. The case was not swindling, because there was apparently no intention that the title to the money should pass. Segal v. State, 98 Tex. Cr. R. 485, 265 S. W. 911, 35 A. L. R. 1331. If the prosecution had been for theft by false pretext, there would have been some ground for applying to same the reasoning of the case of Stokely v. State, 24 Tex. App. 509, 6 S.W. 538. We think the plain terms of the statute ought to and do control the question under discussion.

Objection is also urged to the admission in evidence of similar and practically contemporaneous transactions in which the appellant perpetrated the same character of swindling on other gullible victims. This testimony, we think, was admissible to illustrate her intent, and to prove a system of obtaining money wholly inconsistent with the defense of lack of fraudulent intent in appropriating the money to her own use and benefit. Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908.

Other errors assigned have been carefully considered, and are not believed to be of a character which would justify a reversal, nor of sufficient interest to make their discussion...