Bundage v. State, 24152.

• Decision Date: 03 November 1948
• Docket Number: No. 24152.,24152.
• Citation: 215 S.W.2d 339
• Parties: BUNDAGE v. STATE
• Court: Texas Court of Criminal Appeals

215 S.W.2d 339

BUNDAGE v. STATE

No. 24152.

Court of Criminal Appeals of Texas.

November 3, 1948.

Rehearing Denied December 15, 1948.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Hood Bundage was convicted of obtaining money on a worthless check, and he appeals.

Judgment reversed, and cause remanded.

Clyde Vinson, of San Angelo, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the offense of obtaining money on a worthless check, with further allegations of two previous convictions. Upon his conviction therefor, he was given a term of four years in the state penitentiary.

It was shown by the proof that appellant entered the store of Amunda Figueroa in San Angelo, Texas, and purchased a package of cigarettes. He presented in payment therefor a check on the First National Bank of that city, payable to Figueroa's Food Market, for $7.80. Mr. Figueroa took the check and told his wife, Flavia Figueroa, to cash it, which she did, giving appellant $7.60 and the cigarettes. It appears that appellant had no account in the bank upon which the check was drawn.

The State charged appellant with having defrauded Mrs. Flavia Figueroa. The testimony of the State showed that Amunda Figueroa and his wife were married, were living together, and that they both owned the store. In other words, the property acquired by appellant was the community property of Mr. and Mrs. Figueroa. Under these facts, the ownership of such community property should have been alleged to be in Amunda Figueroa and not in his wife. See Merriweather v. State, 33 Tex. 789, 790; Jones v. State, 47 Tex.Cr.R. 126, 80 S.W. 530, 122 Am.St.Rep. 680; Sessions v. State, 101 Tex.Cr.R. 40, 274 S.W. 580; Walton v. State, 145 Tex.Cr.R. 521, 170 S.W.2d 224; Turner v. State, 144 Tex.Cr.R. 359, 163 S. W.2d 205, and cases cited, especially in the Turner case, supra.

On account of the failure of the proof to correspond with the allegations, the judgment is reversed and the cause remanded.

On State's Motion for Rehearing.

BEAUCHAMP, Judge.

The Honorable O'Neal Dendy, District Attorney, has filed a motion for rehearing in which he relies on Miles v. State, 51 Tex. Cr.R. 587, 103 S.W. 854, 855, as authority for his contention that ownership was properly laid in Mrs. Figueroa.

The facts of the Miles case are quite different from the instant case. Amunda Figueroa and his wife owned and operated a food market in San Angelo. Appellant went into this store and gave his check to the husband who testified: "At the time I took the check from the defendant I was pretty busy; we were all busy at the time; so I just handed the check to my wife to give change and that is how the wife got mixed up in this, she just give the change. * * * I told my wife to check him out and handed her this check, and she did."

In the Miles case the husband lived some distance from his store. Upon reaching it in the morning, he discovered he had left his pocketbook...