Bond v. State
| Decision Date | 08 March 1961 |
| Docket Number | No. 32996,32996 |
| Parties | Joe H. BOND, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert B. Billings, Neil Brans, David McCord, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., Jerome V. Chamberlain, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is theft by false pretext; the punishment, two years.
This prosecution grew out of an interim financing arrangement between appellant, a Dallas general contractor, and the Groves Lumber Company of Dallas, who agreed to furnish the money so that appellant might construct a large apartment house in the City of Lubbock.
The focal point in the case is State's Exhibit #2, a payroll or draw sheet which reads as follows:
'Dallas, Texas, 2-27-59
'We, the undersigned, hereby certify that we have received the amounts set opposite our respective names, same being payment in full to date for all labor performed or material furnished on the Joe H. Bond job at Lubbock, Tex.
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Total
Name Mon Tue Wed Thu Fri Sat Rate Amount Signature
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J. E. White Trucking Co. Freight 450.00 3091
Ken Thompson Travel Exp 100.00 3096
Armstrong & Co Air Cond & Htg 3480.00 3092
Mayfair Windows $2350.00 3093
Boyle Brick Co Brick 2200.00 3089
Ater Whitwell Lumber 941.00 3101
A & B Elect. Elect Cont. 3000.00 3102
Allied Steel Steel 326.57 3103
Lubbock Conc. Conc 657.50 3094
Carp Labor Carp & Misc 3861.22 ----
'Received from Groves Lumber Co. 17,266.29 Dollars, in payment of above pay roll, or material furnished on above job, which I certify to be correct.
'(Sgd.) Joe H. Bond
'________
'(StampFeb 28 1959
PAID
Groves Lumber Co., Inc.
By #12285)'
The State's case is made to depend upon this being a representation that item #3 had been paid at the time appellant presented the sheet to Groves and that such representation was false. The record is in three volumes, but we shall set forth the facts pertinent to this basic issue.
Charles Paschall, Vice President of Groves, testified that prior to commencing the Lubbock job appellant made arrangements with his company to furnish the interim financing, assigned to them a mechanic's lien in the sum of $150,000 executed by the owner of the land in Lubbock and payable to appellant upon his completion of a 24-unit apartment house, with the understanding that as appellant expended money on the project he should secure reimbursements from Groves by submitting draw sheets in the from set forth above. He stated that in the column on the right under the word 'signature' appellant was to insert the number of his check which he had used to pay each item therein listed. He stated that on the day in question appellant presented the above exhibit, represented that he had paid the items listed and advanced the sums shown to the named parties, and that he in turn caused a check in the sum of $17,266.29 to be drawn on Groves' account in the Republic National Bank payable to appellant and passed it on to Graves, who was Vice President and Assistant Secretary and who had authority to draw on company tunds, who in turn executed the check. The check was issued, and appellant acknowledged receipt thereof.
Armstrong testified that on April 14, 1959, some six weeks after the State's exhibit was given to Paschall, he, not having received any money from appellant on the Lubbock job, came to Dallas and demanded of appellant the $14,000 that was then due him; that appellant said he was short of money and gave him a $5,000 check which was not honored when presented at the bank; and that he never received the sum of $3,480 or any other sum from appellant.
It was appellant's theory that this exhibit does not constitute a representation that the funds shown had been paid, and he testified that Paschall told him to insert the number of the check which he intended to use in paying the account, or any number, just so Paschall could use the draw sheet to borrow money from the Republic Bank. He further testified that Guy LaRue, doing business as the Falcon Construction Company, sub-contracted the entire Lubbock job from him and furnished him with the information which he placed on the draw sheet. He introduced in evidence checks in the sum of $78,000 which he had paid LaRue and Falcon. The State, on the other hand, showed that Groves advanced $106,000 to appellant and that appellant was indebted to LaRue and Falcon on other jobs which were being constructed at the same time as the one in Lubbock. Appellant's explanation as to the discrepancy in the sums shown above was that he had paid the same direct to the suppliers, that his checks covering such payments were in the hands of a referee in bankruptcy, but he was unable to name one of such suppliers.
From the record, the jury were authorized to conclude that the draw sheet set forth above constituted a representation that the...
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