Bink v. State

• Decision Date: 28 November 1906
• Citation: 98 S.W. 249
• Parties: BINK v. STATE.
• Court: Texas Court of Criminal Appeals

98 S.W. 249

BINK v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1906.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Jack Bink was convicted of theft, and appeals. Reversed and remanded.

H. B. Birmingham and D. K. Fooshee, for appellant. Dave Watson, R. L. Lattimore, Co. Atty., and J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charges appellant with having stolen seven $20 bills and four $5 bills, all alleged to be current money of the United States of America, from Chapman, in the Indian Territory, which is alleged to be in violation of the law of the Indian Territory then in force, and known as the offense of theft, and which, if committed in this state, would have been theft, and thereafter bringing said property into the county of Lamar and state of Texas.

The evidence shows that appellant and Chapman were on the train near Hugo, I. T., and engaged in conversation. Appellant stated to Chapman that he had quite a disagreeable trip during the cold weather, that he had been over to Paris, taken up the body of his grandfather, and was moving it to the old family burying ground, near Sawyer. This part of the conversation passed, and they talked of other thinks. The east-bound train was waiting for the south-bound, which was late. The east-bound train "pulled down east of the water tank," waited the arrival of the south-bound. At this juncture there came a man in, shown to be Dampers, who walked up to Bink and said: "Well, everything is loaded on nicely, and we hope you will not have any trouble from here down." He further said: "You understand the charges are to be paid at this exchange." Bink said: "Well, I have deposited all the money I had. In fact, I thought I was to pay the whole charges at Sawyer." And further said: "I do not believe I have money enough to pay you. In fact, I know I have not." "He then asked me [Chapman] if he could borrow a few dollars from me until he reached Sawyer, and I told him I guessed he could. Appellant asked Dampers then what the charges would be. He told him $170 and I asked him how much money he wanted. He said `Give me $160 if you have got it.' He said he had $10 or $12 in his pocket. Q. Before that, had he or not offered any check to Dampers? A. Yes, sir; he did that when he told Dampers that he did not have the money. He says, `I have not got the money unless you can cash a draft.' He handed Dampers the draft and he looked at it. He said, `It is as good as gold,' but he says, `I could not possibly make the change here.' He then asked me if he could get a few dollars from me, and I told him, `yes.' He asked Dampers then what the whole charges would be, and he told him $170. I asked him how much he wanted then, and he said, `Give me $160, if you have got it.' He says, `I have got $10 or $12 here in my pocket, and he pulled out what money he had, and I counted him out $160. Q. What, if anything, did he say as to when he would pay it back? A. He says, `I will hand you the money back when you get to Sawyer.' And he got up from the seat. He says, `We will step in here and sign up these papers.' He says, `We will have 10 or 15 minutes before the train leaves.' And he stepped off two or three steps, turned back, handed me the draft, and says, `Here, Chapman, you hold the draft until you get down to Sawyer, and I will hand you your money back.' I stood there until they almost reached the front of the car, or had reached it. I saw they were not going in the baggage car or express car, and I thought I would follow them and when I got to the front of the car, Bink and Dampers were out on the ground and going right up by the side of the car, and there was another man coming from the other end of the car, and stopped me. Q. If you didn't follow them, why didn't you follow them? What did you do? A. I stopped there a few minutes at the car. Q. Were you detained there a few minutes? A. Yes, sir; I was detained there a few minutes until they had gotten out of sight. I don't know where they went, and the south-bound train pulled in by that time, and I went back through my car, and went into the head end of the south car, came back through looking for these fellows." It was shown that this train came south over the Frisco road to Paris. This witness identified Bink (appellant) as the man who got his money. Bink and Dampers were arrested subsequently and charged as set out in the indictment. This is the second appeal. The question was raised before, as to the introduction of extraneous crimes, and error pointed out, which was sustained, and the judgment reversed. This case will be found reported in 89 S. W. 1077, 14 Tex. Ct. Rep. 1011.

Several questions are suggested for reversal, only one of which we deem really necessary to be discussed, to wit, the insufficiency of the evidence to support the conviction. We believe that this contention is correct. There is and has been, in England and America, and it is true in Texas, a marked distinction between theft and swindling. Article 861, Penal Code, provides, in substance, that if the possession of the property is wrongfully obtained, it is theft if the purpose at the time of obtaining the property was to appropriate it, or if it was obtained by false pretenses for the purpose of appropriating it. Article 877 provides that, wherever property is obtained by contract of borrowing or other bailment, and the property is subsequently appropriated, it constitutes theft. But, under these statutes and all of the law of theft, the...