Belcher v. State, s. 46808 and 46809
| Decision Date | 06 February 1974 |
| Docket Number | Nos. 46808 and 46809,s. 46808 and 46809 |
| Citation | 504 S.W.2d 858 |
| Parties | A. M. BELCHER, Appellant, v. The STATE of Texas, Appellee. Mae BELCHER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert B. Maloney and David L. Loving, III, Dallas, for appellants.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
These are appeals from convictions for felony theft of money by false pretext. The punishment was assessed by the jury at ten years, probated.
The appellants contend that the evidence is insufficient and that the court erred in refusing to give an instruction on circumstantial evidence. We overrule these contentions and affirm the judgments.
Appellants contend that the evidence is insufficient to prove a false pretext or the intent to deprive the complainant of her money.
The complainant, Dovie Walling, an elderly Houston widow, met the appellants in 1960. A. M. and Mae Belcher, aged 70 and 76, respectively, introduced themselves to Mrs. Walling at the suggestion of a Mr. Roulette, a Las Vegas croupier who had formerly managed the Balanisian Room in Galveston, a club frequented by the three. The Belchers and Mrs. Walling saw each other several times during the next several years and became friends. Mrs. Walling became impressed with Mrs. Belcher's business ability. Mrs. Belcher had stated that she had been an independent oil operator for some forty years. The Belchers appeared to be wealthy by general appearance, their travels to various gambling places throughout the country, and a scrapbook of newspaper clippings shown to Mrs. Walling by Mrs. Belcher at their first meeting.
In December, 1966, the Belchers learned through an exchange of Christmas cards that Mrs. Walling's business manager had died. In January, 1967, Mrs. Walling made the first of three visits to the Belcher home in Dallas. There, the Belchers introduced her to James William Osborn, a long-time acquaintance of the Belchers. Mrs. Walling was very favorably impressed with Osborn, describing him as
'a very handsome man; he was beautifully dressed and had very lovely manners and he . . . was a man that I think any lady would be proud of.'
During this first weekend, Mrs. Walling and Osborn apparently discussed a business venture involving an investment by her in certain oil property Osborn claimed to own in Oklahoma.
The following weekend, Mrs. Walling returned to Dallas with the intention to fly to Oklahoma to view Osborn's property. Bad weather postponed the trip but the transaction was consummated in the Belcher home on Saturday, January 14. Mrs. Walling gave Osborn a check for $20,000, dated January 16, and received an assignment agreement to purchase a five percent interest in the oil property.
Mrs. Walling made a final trip to Dallas the following weekend, where she was met by the Belchers, and the three then flew on to Tulsa, Oklahoma. They were met there by Osborn who took them on a tour of the oil field in which Mrs. Walling thought she had invested. The four then flew to Las Vegas for a few days and returned separately.
On January 20, Mr. Belcher introduced Osborn to the president of Preston State Bank of Dallas and Osborn opened a checking account, depositing the $20,000 check from Mrs. Walling. The collection request from Preston State Bank to Mrs. Walling's bank bore the notation, 'Call Mr. Belcher EM8--6993 when paid.'
The relationship between Mrs. Walling and Osborn continued to blossom. On February 27, Osborn deposited another $15,000 check given him by Mrs. Walling. On May 2, Mrs. Walling invested $3,000 more. On May 27, Osborn requested an additional $1,200; this time Mrs. Walling refused. In late February, Osborn had proposed marriage and Mrs. Walling accepted. However, in June, Mrs. Walling discovered Osborn was already married. Mrs. Walling never saw Osborn again after his final visit to Houston on May 3rd. Osborn, who was also charged with the offense, was arrested but failed to appear and his bail was forfeited. Later, he was apprehended in New Mexico, was permitted to make bail, and it was also forfeited.
During this period, other friends and acquaintances of Mrs. Walling were investing in the same Oklahoma property Osborn claimed to own. These 'investors' were Dr. Andrew Kulaga, Mrs. Lee Cornelius, Mrs. H. Parr Armstrong, and Mr. and Mrs. Lloyd Gambrell.
Bank records introduced showed that Osborn wrote a $10,000 check to Good Earth Oil Company, drawn on his account with Preston State Bank and dated January 19, One day before the account was opened on January 20 with the deposit of Mrs. Walling's $20,000 check. Good Earth Oil Company is a family corporation wholly owned by the Belchers. On the 20th, Osborn's $10,000 check was endorsed by A. M. Belcher and deposited in the Good Earth account.
Osborn deposited Dr. Kulaga's $5,000 check on February 24, and on March 1 wrote a check to 'cash' in the amount of $2,500. The check bore on its face the notation, 'May Belcher.' On February 27, Mrs. Walling's second check for $15,000 was deposited in Osborn's account. His March 3 check to 'cash' in the amount of $7,500 bore the notation 'Mae Belcher expenses.' On March 6, Osborn deposited Dr. Kulaga's second check in the amount of $2,500; his check to 'cash' for half that amount, dated March 10, bore the notation 'for Mae Belcher.' Also, on March 6, Mrs. Cornelius' $7,500 check was deposited and on the same day Osborn's check to 'cash' in the amount of $3,750 bore the notation 'Mae Belcher expenses.' Mrs. Armstrong's $7,500 check was deposited on March 8. Osborn's check the next day was to 'cash' again for half that amount and noted 'Mae Belcher.' The pattern finally breaks down with the March 20 deposit of the Gambrells' $18,750 check. Osborn's check to 'cash' on April 4 also bore the notation 'for Mae Belcher' but was in the amount of only $4,000.
It was stipulated that in the year 1967 Beard, Incorporated, was the sole owner of the Oklahoma oil field in which Osborn was...
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