Baldwin v. State, 18840.

• Decision Date: 24 March 1937
• Docket Number: No. 18840.,18840.
• Citation: 104 S.W.2d 872
• Parties: BALDWIN v. STATE.
• Court: Texas Court of Criminal Appeals

104 S.W.2d 872

BALDWIN v. STATE.

No. 18840.

Court of Criminal Appeals of Texas.

March 24, 1937.

Rehearing Denied May 12, 1937.

Commissioners' Decision.

Appeal from District Court, Goliad County; J. P. Pool, Judge.

W. N. Baldwin was convicted of theft by false pretext, and he appeals.

Affirmed.

Ghent Sanderford, of Austin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of theft of property over the value of $50, and his punishment was assessed at confinement in the state penitentiary for a term of five years.

Appellant's main contention is that the testimony in this case is insufficient to sustain his conviction for the offense of theft; that if he is guilty of any offense, it is swindling and not theft by false pretext. In order that this opinion may more clearly reflect the reasons for our conclusions hereinafter announced, we deem it proper to set forth the salient facts proven upon the trial. Mrs. Etta Terrell testified that on or about the 11th day of December, 1929, appellant and W. A. McWhorter came to her home and told her that they were drilling an oil well on the Lucas ranch in Goliad county; that they had the well ready to bring in, but before doing so that they desired to purchase the surrounding land; that they had $30,000 but needed $20,000 more and wanted her to furnish the needed sum of money; that in consideration therefor they would give her part of their interest; that by reason of said statements and representations they obtained from her ten promissory notes each in the sum of $2,000 due and payable six months after date. She further testified: "They stated to me that they were going to buy land with the money they got from these notes and then bring in that oil well and make us all rich. They lead me to believe that my money was to be invested in that oil field. That was what they were going to do with the money, they said. I gave them those notes believing those representations." Appellant and McWhorter were not drilling an oil well on the Lucas ranch at the time and they did not buy any land, leases, or mineral rights in and to any land in Goliad county, but immediately went to San Antonio and traded two of said notes to the Goad Motor Company for a Cadillac automobile. They sold two of the notes soon after the 11th day of December to W. K. Breeden for the sum of $1,200. The rest of the notes were sold to the City Central Bank of San Antonio, Tex.

Appellant testified in his own behalf denying that he had obtained said notes by false pretenses, but stated that he borrowed the money from her and as security therefor left with her some German bonds purported to be worth a millon marks. Appellant takes the position that even if the state's testimony is accepted as true, it does not bring this case within the terms of theft by false pretext, because Mrs. Terrell parted with the title and possession of the notes at the time that she delivered them to appellant and therefore the offense, if any, is swindling and not theft; and cites us to the case of Bink v. State, 50 Tex.Cr.R. 450, 98 S.W. 249, 250, where the distinguishing elements between swindling and theft are stated as follows: "The true distinction between theft and swindling, where the property is acquired by means of false pretenses, is this: If the owner was induced to part with his property finally by means of the false pretenses, the offense is swindling. But where the possession delivered by the owner was obtained in a manner not sufficient to pass title to the property, the owner only intending to part with the possession and custody and not the title to his property, and the party so acquired possession then and there entertaining the fraudulent intent to appropriate it and did appropriate it, the offense is theft." This is but a general statement of the rule to which appellant seems to cling tenaciously notwithstanding the rule announced by this court in the cases of Contreras v. State, 118 Tex.Cr.R. 626, 39 S.W.(2d) 62, and De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.(2d) 1024, that the intent of the owner in parting with the title is not the sole distinction between swindling and theft by false pretext, but that the false...