Cameron v. Hauck, 23844.

• Decision Date: 04 October 1967
• Docket Number: No. 23844.,23844.
• Parties: Montgomery Fly CAMERON, Appellant, v. W. B. HAUCK, Sheriff of Bexar County, Texas, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

383 F.2d 966 (1967)

Montgomery Fly CAMERON, Appellant, v. W. B. HAUCK, Sheriff of Bexar County, Texas, Appellee.

No. 23844.

United States Court of Appeals Fifth Circuit.

September 5, 1967.

Rehearing Denied October 4, 1967.

COPYRIGHT MATERIAL OMITTED

Hume Cofer, Austin, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., for appellant.

Preston H. Dial, Jr., Dist. Atty., San Antonio, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., James E. Barlow, Crim. Dist. Atty., San Antonio, Tex., for appellee.

Before THORNBERRY, GOLDBERG, and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

Herein of the assessment and application of constitutional standards in the case of the disappearing emerald cufflinks. The facts are no mystery.

The defendant, Cameron, an interior decorator in San Antonio, Texas, was given a pair of emerald cufflinks by a friend. The cufflinks were large. The emeralds in them weighed more that 58 carats, and had been cut in a shape which jewelers call "cabachon," meaning convex and without facets. They had been manufactured by Julius Cohen of New York City in 1963, and sold to Cameron's donor.

Cameron told Cohen, when the latter was in San Antonio, that he was displeased with the cufflinks, and wished to return them to Cohen. Cohen took the cufflinks with him when he returned to New York. A long correspondence ensued between Cameron and Cohen, in which the possibility of Cameron's taking other cufflinks in exchange was discussed. On March 30, 1964, however, Cameron wrote Cohen stating that he wished the emerald cufflinks to be returned. Cohen immediately returned them by registered mail.

Shortly later Cameron asked Cohen if he could return the emerald cufflinks again, in connection with some additional work to be done by Cohen on another pair of cufflinks owned by Cameron. Cohen agreed, took back the emerald cufflinks, and credited Cameron's account with $2,200.

Cohen had previously appraised the emerald cufflinks at $3,400, and on January 10, 1964, Cameron insured against the loss of these cufflinks with Aetna Casualty and Surety Company, valuing them at $3,400.

On July 27, 1964, Cameron reported the "loss" of the cufflinks to Aetna. Later he filed a proof of claim and collected $3,400 from Aetna's Claim Agent, Charles Hedlund.

On January 1, 1965, charges of theft were filed against Cameron before a Justice of the Peace. He requested and was given an examining trial. See Vernon's Ann.Texas Code Crim.Proc., Arts. 15.17 and 16.01-16.21. At this examining trial, held on February 3, the state produced three of the six witnesses and most of the documentary evidence used at the full trial. Cameron, who then had the retained counsel later used at trial, had the right to, and did, cross-examine those witnesses. The defense also produced a witness at the examining trial who testified for the state at the full trial.

On February 23 the Grand Jury indicted Cameron for theft of the money received from the false insurance claim.¹ He was later tried, convicted, and sentenced to two years in prison. The Court of Criminal Appeals affirmed the conviction. Cameron v. State, 1966, Tex. Cr.App., 401 S.W.2d 890. All parties agree that he has exhausted his state remedies, as the issues raised here were raised and decided in the Court of Criminal Appeals.

Cameron sought habeas corpus in District Court which was denied. He appeals, and we affirm the denial of the Writ.

I.

Knewel v. Eagan, 1925, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, holds that questions concerning the sufficiency of an indictment cannot be raised on habeas corpus unless they go to the jurisdiction of the court which tried the offense. This case is widely held to be authoritative on such issues as we have here. Stewart v. Dunn, 5 Cir. 1966, 363 F.2d 591 (dictum); United States ex rel. Tangredi v. Wallack, 2 Cir. 1965, 343 F.2d 752, 753; Kimbro v. Bomar, 6 Cir. 1964, 333 F.2d 755.

However, the Supreme Court has questioned Knewel v. Eagan in Fay v. Noia, 1963, 372 U.S. 391, 412, 83 S.Ct. 822, 834, 9 L.Ed.2d 837, 853, and Knewel may no longer be the law.² See Johnson v. Walker, 5 Cir. 1963, 317 F.2d 418, 419. This being so, we consider the merits of Cameron's claim concerning the validity of the indictment.

II.

Cameron first claims that his indictment was insufficient by federal constitutional standards to support a conviction for theft by false pretext.

Cameron was indicted for felony theft (see footnote 1, supra). Felony theft is defined in Vernon's Ann.Tex. Pen.Code Art. 1410.³ Further definition follows in succeeding Articles. Article 1411 states that the property taken must have some specific value. Article 1412 states that asportation is not essential to theft. Article 1413 states:

The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.

Under this article it is clear that theft by false pretext is included within the general notion of theft, and the Texas Court of Criminal Appeals (the court of last resort in Texas criminal matters) has held from the earliest years of the Penal Code that an indictment for theft will support a conviction for theft by false pretext. E. g., Vick v. State, 1965, Tex.Cr.App., 397 S.W.2d 229; Hogan v. State, 1965, Tex.Cr.App., 393 S.W.2d 898 (see cases cited 393 S.W.2d at 900); Gibbs v. State, 1953, 158 Tex.Cr. 145, 253 S.W.2d 1002; Hawkins v. State, 1910, 58 Tex.Cr. 407, 126 S.W. 268; Morrison v. State, 17 Tex.App. 34.

According to Cameron, the problem arises because under Art. 1413, the crime of theft by false pretext requires proof of appropriation of the property, "to the use and benefit of the person taking." On the other hand, he claims, only the intent to appropriate, and not appropriation itself, need be shown under Article 1410.

This argument appears alluring at first glance, but upon examination it disintegrates. The element of "appropriation" under 1413 is subsumed under the element of "taking" under 1410. In the Texas cases which discuss whether or not an appropriation has occurred under 1413, the clear question under discussion is whether the defendant has done anything inconsistent with the true owner's ownership of the property; in other words, whether the defendant has acted adversely to the true owner's ownership. McCain v. State, 1942, 143 Tex.Cr. 521, 158 S.W.2d 796; Riggs v. State, 1934, 125 Tex.Cr. 647, 70 S.W.2d 164. Especially instructive is Jones v. State, 1899, Tex.Cr.App., 49 S.W. 387. In that case the defendant had hired a horse later in the day at Corsicana, where he stated that he intended to return the horse to its owner. The Court stated in part:

"* * * the proof must show that the obtention of possession was by means of some false pretext made for that purpose, and that the party had the intent at the time to deprive the owner of the value thereof, and to appropriate the property to his own use, and that he did so appropriate it. Measured by this rule, it does not appear to us that the proof shows these constituent elements of the offense beyond a reasonable doubt. So far as the evidence discloses, there was no positive proof of an actual appropriation of the property. It is true this proof can be made by circumstances, and the party may convert the property to his own use while he still has it in possession, not having parted with it; but in such case the proof should establish the fact of the appropriation beyond a probability or suspicion. So far as we are advised from the testimony, there was no concealment on the part of appellant when found at Corsicana as to where he got the horse, and his conduct there was not inconsistent with his trusteeship and his intent to restore such horse to the owner."

The same considerations are crucial to deciding whether there has been a "taking" under 1410. E. g., McKnight v. State, 1966, Tex.Cr.App., 399 S.W.2d 552; Johnson v. State, 1958, 165 Tex.Cr. 468, 308 S.W.2d 869; Barnes v. State, 1942, 145 Tex.Cr. 131, 166 S.W.2d 708; Kiser v. State, 1941, 141 Tex.Cr. 530, 150 S.W.2d 257; Ainsworth v. State, 1930, 115 Tex.Cr. 321, 30 S.W.2d 310; compare Smith v. State, 1945, 148 Tex. Cr. 386, 187 S.W.2d 572.

Similarly, where there is no doubt about the fraudulent intent of the defendant in a theft by false pretext prosecution, there is no necessity of showing what defendant did with the property once he had it. Proof of "appropriation" in such cases is satisfied by a mere proof of taking. Lovine v. State, 1938, 136 Tex.Cr. 32, 122 S.W.2d 1069; Hawkins v. State, 1910, 58 Tex.Cr. 407, 126 S.W. 268.⁴ The question of whether there has been an "appropriation" has been treated identically with the question of "taking." See the remarkable opinion of Judge Beauchamp in Black v. State, 1941, 141 Tex.Cr. 468, 149 S.W.2d 968.

The Court of Criminal Appeals, in the present case, drew the obvious conclusion:

"Under the provision of Art. 1413 * * *, the only difference between theft by false pretext, defined therein, and ordinary theft as defined in 1410 is the circumstances by which the property came into possession of the accused."

Thus, the use of "appropriation" in 1413 adds nothing of substance to the crime defined in 1410, because no additional element of, or defense to, the crime of theft is created by its use.⁵ Cameron was not disadvantaged by the failure of the state to allege appropriation, because that allegation would have been surplusage.⁶

We hold that the indictment sufficiently apprised Cameron of all of the elements of the offense he was charged with, and that Cameron's argument that he was indicted for one offense and tried for...