Carroll v. State
| Decision Date | 25 March 1959 |
| Docket Number | No. 30527,30527 |
| Parties | Agnes CARROLL, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William C. McDonald, San Angelo, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is theft by false pretext; the punishment, four years.
Mary Wilde, a long-time patient at a San Angelo hospital, testified that the appellant came to her room in the hospital and told her that her brother had made a contribution for the installation of new windows at the Catholic church near her home in Ballinger and suggested that the appellant see her to secure a further contribution. She testified that she signed a check payable to the appellant and which the appellant had prepared in the sum of $500 for the purpose indicated in the appellant's conversation.
It was shown that there was no project for the installation of new windows at the Catholic church in question.
A detailed recitation of the facts is not called for because the appellant testified to all the salient facts, admitting having taken the check in question to the First National Bank in Ballinger where she cashed it, as the bank president testified, but claimed that she was acting as an innocent agent for one Mary Reed.
Mary Reed, who was serving a term in the penitentiary for her participation in the theft of this and other checks from the injured party, was called in rebuttal by the State and testified that she and not the appellant was the innocent agent in the transaction.
By motion to quash and motion for instructed verdict, the appellant asserted that if she was guilty of any offense it was that of embezzlement and not that of theft because the check was made payable to her and because the injured party testified that at the time she signed the check she did so willingly and gave her consent for the appellant to take the same with her when she left the hospital.
Appellant cites and relies upon only one case, Elbury v. State, 114 Tex.Cr.R. 269, 25 S.W.2d 846. She overlooks the fact that the fallacy of the holding in Elbury and other kindred holdings was recognized and departed from by this Court in De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.2d 1024; Contreras v. State, 118 Tex.Cr.R. 626, 39 S.W.2d 62; White v. State, 123 Tex.Cr.R. 282, 58 S.W.2d 530; Sherman v. State, 124 Tex.Cr.R. 273, 62 S.W.2d 146; Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.2d 104; Haley v. State, 127 Tex.Cr.R. 277, 75 S.W.2d 272; New v. State, 129 Tex.Cr.R. 16, 83 S.W.2d 668; Baldwin v. State, 132 Tex.Cr.R. 427, 104 S.W.2d 872; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069, and Johnson v. State, 144 Tex.Cr.R. 392, 162 S.W.2d 980. See also 39 Tex.Juris., sec. 3, p. 1053, and Bomar v. Insurors Indemnity & Ins. Co., 150 Tex. 484, 242 S.W.2d 160.
Conner v. State, 133 Tex.Cr.R. 429, 111 S.W.2d 723, 724, answers appellant's contention that she could not be guilty of theft by false pretext because the injured party consented to her taking the check. There, we said:
'The consent of the owner, if obtained by means of a false pretext, is no defense to a charge of theft, if the intention of the accused, at the time of the taking, was to divest the owner of his property.'
Finding no reversible error, the judgment of the trial court is affirmed.
This is a conviction for the theft of a check. It is not a conviction for the theft of the money which was obtained by the check.
It was the option of the state to bring this prosecution as it did--that is, for the theft of the check (Worsham v. State, 56 Tex.Cr.R. 253, 120 S.W. 439), but when it did the state assumed the burden of discharging the obligations necessary to a conviction for the theft of the check.
The indictment follows the regular form for charging felony theft.
The description of the property allegedly stolen is as follows:
' * * * one check drawn on the First National Bank of Ballinger, Texas, payable to Agnes Carroll, in the amount of $500.00, and signed by Mary Wilde * * *.'
The check was not set out, haec verba, in the indictment. The above is the only description of the check therein.
By motion to quash, appellant challenged the sufficiency of the indictment in that it failed to charge an offense and because the check was not set out, haec verba, therein and the state did not account for its failure to do so.
The motion was overruled.
Appellant's contention appears to be supported by the cases of: Leinart v. State, 159 Tex.Cr.R. 220, 262 S.W.2d 504, Perry v. State, 141 Tex.Cr.R. 291, 148 S.W.2d 412, Burns v. State, 112 Tex.Cr.R. 328, 16 S.W.2d 538, and Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561.
The defect in the description of the check appears to rest mainly in the fact that the date of the check is not shown. There is nothing, then, in the description of the check as set out in the indictment which showed that it was in existence or that it was, in fact, property at the time the offense was alleged to have occurred or the indictment returned.
Inasmuch as the state had the check in its possession, the better practice would have been to set out, haec verba, the check in the indictment.
A far more serious error is reflected by this record than that relating to the sufficiency of the indictment, however, that being the variance between the description of the check as contained in the indictment and the check which was offered and received in evidence in support of that allegation.
To support the allegation in the indictment, the state offered the check in evidence, a photostatic copy of which is here attached:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
A check is a bill of exchange drawn upon a bank and payable upon demand. Art. 5947, Sec. 185, R.C.S.; Brown v. State, 157 Tex.Cr.R. 30, 246 S.W.2d 197. For an instrument to be a check within the meaning of that term it must be drawn upon a bank and it must constitute an unconditional order to pay on demand a specific sum of money to the person named in the check....
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