Davenport v. State

• Citation: 78 S.W.2d 605
• Decision Date: 21 November 1934
• Docket Number: No. 16861.,16861.
• Parties: DAVENPORT v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

78 S.W.2d 605

DAVENPORT v. STATE.

No. 16861.

Court of Criminal Appeals of Texas.

November 21, 1934.

Rehearing Dismissed January 23, 1935.

Appeal from District Court, Tom Green County; John F. Sutton, Judge.

William E. Davenport was convicted of theft, and he appeals.

Affirmed.

W. A. Anderson and Wm. E. Davenport, both of San Angelo, and Dan Moody and J. B. Robertson, both of Austin, for appellant.

Glenn R. Lewis, Dist. Atty., of San Angelo, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The offense is theft; penalty assessed at confinement in the penitentiary for two years.

The indictment is as follows:

"The grand jurors, duly selected, organized, sworn and impaneled as such for the County of Tom Green, State of Texas, at the May term, 1933, of the 51st Judicial District Court of said County, upon their oaths present in and to said Court that on or about the 4th day of December, A. D., 1930, and anterior to the presentment of this Indictment, in the County and State aforesaid William E. Davenport, did, then and there unlawfully and fraudulently take a certain written instrument, the same being a check of the value of $250.00, the same being the corporeal personal property of John Lewis, from the possession of the said John Lewis, without the consent of the said John Lewis, and with the intent then and there to deprive the said John Lewis of the value thereof and to appropriate it to the use and benefit of him, the said William E. Davenport; said check reading in words and figures as follows:

                   "The Farmers' National Bank of Cross
                             Plains, Texas
                         "Cross Plains, Texas, 12-1930
                

"Pay to the order of Wm. E. Davenport $250.00 Two Hundred fifty & 00/100 Dollars "Part fee in Odessa cases

                                             "John Lewis."
                

The offense is defined in article 1413, P. C. 1925, and that part which is applicable to the present instance reads as follows: "* * * 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."

The substance of the uncontroverted evidence is as follows: Contemplating the indictment of his son for a penal offense, J. W. Lewis contracted with appellant, a lawyer, to defend the son. The contract was in writing and was to the effect that if Lewis' son was indicted, appellant should receive $250; that in case of a trial in the district court, he should receive $500; and in the event of an appeal to the Court of Criminal Appeals, he should receive $1,000. Lewis and his wife executed and delivered to appellant a promissory note, due one year after date, for the total sum of $1,000, in accord with the contract mentioned, which note was secured by a deed of trust on seventy-five acres of land described in the mortgage. The note and mortgage were received by appellant on May 2, 1930. On June 5, 1930, appellant transferred the note and mortgage to W. A. Griffis in consideration of the payment by Griffis to appellant of the sum of $900. After the deed of trust and note had been transferred to Griffis, which fact was unknown to Lewis, appellant received from Lewis the check for $250 which is described in the indictment. Lewis' son having previously been indicted for a felony, the check was in part payment of the note.

In his charge to the jury the court embraced the following: "* * * But in this connection you are further charged that if the taking, though originally lawful and with the consent of the owner, was obtained with intent to deprive the owner of the value thereof, and to appropriate said property to the use and benefit of the person taking same, and same is so appropriated, the offense of theft is complete."

There was no exception to the charge mentioned, but counsel for the appellant urges that the charge amounted to fundamental error. On the same ground the following paragraph of the charge was assailed: "Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, William E. Davenport, in the County of Tom Green and State of Texas, on or about the 4th day of December, 1930, took from the possession of John Lewis, with the consent of the said John Lewis, the check for $250.00 described in the indictment, with the intent to deprive the said John Lewis of the value thereof, and to appropriate said property to the use and benefit of the said William E. Davenport, and that the same was so appropriated, and that the same was of the value of Fifty Dollars or over, then you will find the defendant guilty of theft of personal property of the value of Fifty Dollars or over, as charged in the first count of the indictment, and assess his punishment at confinement in the penitentiary for any term of years, not less than two nor more than ten; but, if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict Not Guilty."

As the record is understood, the instruction is not incorrect. Moreover, it seems obviously not fundamental error, and the absence of exception to the instruction during the trial would waive any defect not fundamental. Such is understood to be the effect of the statute, article 666, C. C. P.; also articles 657 to 660, C. C. P; and Johnson v. State, 88 Tex. Cr. R. 136, 224 S. W. 1103, cited by appellant.

Reference is made to that part of the contract between appellant and Lewis in which it is stated that Lewis and wife, in addition to the fees, would pay all expenses incident to the defense of the suit. The proposition is advanced that the state failed to prove the amount of the expenses or the satisfaction of them, and that such failure was fatal to the conviction. This is not regarded as tenable. The testimony adduced from Lewis and Dr. Griffis, including the declarations of the appellant, is quite adequate to show that Lewis was not a debtor of the appellant. On this subject attention is directed to the following: After testifying as to learning that appellant had obtained the $250 as payment on the note after the note and mortgage had been sold to Griffis by appellant, Lewis stated: "I recall when Mr. Davenport and Dr. Griffis came to see me in August, 1931. Two days before that Mr. Davenport came to see me. * * * I talked to Mr. Davenport at that time about this business and he said he thought he could sell this land to Dr. Griffis for $35.00 an acre, and asked if I would take that and I told him I would. He said, `Don't you expose me and I will bring him down and if I sell it, will you loan me a thousand dollars?' and I told him I would. He said not to expose him and that he would pay off; that he had a $34,000.00 estate to close up and he would have plenty of money. He has never paid me anything."

Moreover, the testimony of Lewis is to the effect that in another interview with appellant (which was at the time he was paid $200 by Lewis, which completed the full amount of the note and which would have been due appellant had he been the owner of the note), appellant said: "Pay me and I will give you a receipt and as soon as the man comes back I will send your note to you."

Lewis testified further that he received from appellant the following note: "I was unable to get in touch with the party that has your note, but will send the same to you together with the release as soon as he gets back to town."

There is no evidence that there were any expenses incurred.

We have examined the very able brief of counsel for the appellant and note the cases upon which he bases his contention that the offense is swindling and not theft, the cases being: Lewis v. State, 75 Tex. 509, 171 S. W. 217; Gibson v. State, 85 Tex. 462, 214 S. W. 341; Elbury v. State, 114 Tex. 269, 25 S.W.(2d) 846; DeBlanc v. State, 118 Tex. 628, 37 S.W.(2d) 1024; Sherman v. State (Tex. Cr. App.) 62 S.W.(2d) 146. The contention is answered by the statute, article 1549, P. C., which contains the following: "Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in such manner as to come within the meaning of theft or some other offense the rules herein prescribed with regard to swindling shall not be understood to take any such case out of the operation of the law which defines any such other offense."

See Witherspoon v. State (Tex. Cr. App.) 37 S. W. 433, and other cases to which reference is made in Haley v. State (Tex. Cr. App.) 75 S.W.(2d) 272, not yet reported [in State Reports]. The statute mentioned seems to have been overlooked in the decision of some of the older cases. However, in our opinion, the record before the court in the present appeal sustains the view that appellant obtained the check from Lewis with the intent to deprive the owner of the value of the check and to appropriate the property to the use and benefit of the appellant, and that the same was so appropriated. Such was the issue submitted to the jury, and the prosecution for theft was clearly authorized under the terms of article 1549, P. C.

The statute denouncing the offense embraces two modes of committing the crime, namely, obtaining the property by false pretext and obtaining the property with intent to deprive the owner of the value of the property in question. The present prosecution is based upon the latter. The distinction between a prosecution under this statute and others denouncing theft is emphasized in many decisions of this court. Among them is Segal v. State, 98 Tex....