Dechard v. State

• Decision Date: 06 June 1900
• Parties: DECHARD v. STATE.
• Court: Texas Court of Criminal Appeals

57 S.W. 813

DECHARD v. STATE.

Court of Criminal Appeals of Texas.

June 6, 1900.

Appeal from district court, Houston county; A. D. Lipscomb, Judge.

W. D. Dechard was convicted of swindling, and appeals. Reversed.

Moore & Newman, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of swindling, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal.

Appellant reserved an exception to the court's refusal to quash the indictment because the same failed to show the venue of the offense was in Houston county, but, on the contrary, it showed that the venue of the offense was in Rusk county. The indictment was for obtaining $500 from W. E Mayes, prosecutor, on the alleged false pretense that appellant represented to said Mayes that he then owned and had on hand 100 head of yearling steer cattle, and that the same were ready for delivery to him (Mayes) in accordance with a certain contract between them, and that the same was false, etc. The indictment alleged at the outset that the venue was in Houston county; that is, "that appellant, in said county of Houston, by means of certain false pretenses," etc., made by him to Mayes, induced said Mayes to honor and pay a certain draft, setting the same out. But the indictment further alleges as follows: "That in due course of trade said draft was presented to W. E. Mayes for payment, and was thereupon paid by the said W. E. Mayes, and the amount of the said draft and check, to wit, the sum of $500, was paid to the said W. D. Dechard by the First National Bank of Rusk. Texas." On this latter part of the indictment it is claimed by appellant that there is a distinct allegation that said money was paid and delivered to appellant in Rusk, Tex., and that Rusk is in Cherokee county, and not the county of the alleged venue. While the indictment alleges that the $500 was paid by the First National Bank of Rusk, Tex., still it does not appear therefrom where Rusk, Tex., is, and we do not take judicial cognizance that Rusk, Tex., is not in Houston county, or that because the Bank of Rusk, Tex., paid the money to appellant, it was not paid to him in Houston county by said bank. Accordingly we held the court did not err in refusing to quash the indictment. However, when we come to inspect the record as to the proof on this branch of the case, it does appear that Rusk is situated in Cherokee county. The money appears to have been paid in this wise: Dechard, on March 9, 1897, wrote from Rusk, Tex., to W. E. Mayes, at Crockett, Tex., to send him $500. On the receipt of said letter, Mayes notified the bank at Rusk that he would honor Dechard's draft for $500, and a draft for $500 was drawn by Dechard in favor of the First National Bank of Rusk on W. E. Mayes, of Crockett, and the money then passed by the bank to the credit of appellant, who drew it out from time to time. As presented by the evidence, it occurs to us that the property was actually delivered by Mayes to appellant at Rusk, in Cherokee county; and the court should have given the instruction as complained of by appellant in his motion for new trial, to the effect that if the jury found that the money was paid in Rusk, Cherokee county, and not in Houston county, they should acquit him. Sims v. State, 28 Tex. App. 447, 13 S. W. 653. That is how we understand the question of venue to be presented in this record. True, a transaction of this character might have been consummated in Houston county, although appellant was not...