Faulk v. State

• Decision Date: 23 June 1897
• Citation: 41 S.W. 616
• Parties: FAULK v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 616

FAULK v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1897.

Appeal from district court, Jones county; Ed. J. Hamner, Judge.

J. T. Faulk was convicted of swindling, and appeals. Reversed.

Christenberry & Colbert, for appellant. Mann Trice, for the State.

HENDERSON, J.

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

There is nothing in appellant's motion to the jurisdiction of the court, and requiring his case to be transferred to the county court. The indictment, on its face, shows a felony, and not a misdemeanor.

Appellant made a motion to quash the indictment on the ground that it fails to charge an offense; his motion to quash being predicated on the failure of the indictment to charge whether said bank was a corporation, a partnership, or an individual. The case cited by appellant, of Nasets v. State (Tex. Cr. App.) 32 S. W. 698, has no application to this case. In that case the name was not of an individual, but such as might be applied to a corporation, a joint-stock company, or a co-partnership; and we simply held in that case that under such circumstances it should be alleged whether the bank was a corporation, a joint-stock company, or an individual. In this the allegation is that the fraudulent representations were made to R. V. Colbert, that he was the owner of the money obtained, and that he was the owner of the Jones County Bank.

There was also a motion to quash the first count in the indictment because no trade or exchange was alleged in connection with the false representations. The allegation in that regard is as follows: "Said J. T. Faulk did then and there falsely pretend and fraudulently represent to the said R. V. Colbert that he, the said J. T. Faulk, then had three hundred dollars of money in the National Bank of Wilmington, in Wilmington, North Carolina, and did thereby then and there fraudulently induce the said R. V. Colbert to exchange his said three hundred dollars of money for a draft then and there drawn by the said J. T. Faulk on said National Bank of Wilmington." (Then follows a description of the draft.) In support of this contention, we are referred to the case of Lutton v. State, 14 Tex. App. 518. In that case it was very clear that no trade or delivery of the check or draft which was a part of the false pretense was alleged, and the court say, "We are of opinion that the motion to quash the indictment should have been sustained, because it is nowhere alleged in the indictment that the check or draft was delivered to or accepted by Baker and Burrows as a consideration upon which they loaned the money to the appellant." A number of cases are referred to in that decision to sustain the action of the court in quashing the indictment. In Cummings v. State (Tex. Cr. App.) 36 S. W. 266, that case was followed; and it was reversed because the indictment failed to show that there was any trade or delivery of the diamond pin by Cummings to Cohen, on which the $75 was alleged to have been obtained. The authorities which have been followed by this court go to the extent of holding that bare representations made in regard to property are not enough; that in connection with such representations in regard to property, its ownership, or quality, which are alleged to be false, and upon which the party is alleged to have procured the money or other property, it must be shown by the indictment that there was a sale or exchange of the property in question. As was said in State v. Philbrick, 31 Me. 401, "The sale or exchange ought to be set forth in the indictment, and that the false pretenses should be alleged to have been made with the view of effecting such sale or exchange, and that by reason thereof the party was induced to buy or exchange, as the case may be." In none of the cases in which the indictment was quashed was the allegation such as is found in this case. Here it is alleged, in connection with the false pretenses, "that the said J. T. Faulk did thereby then and there fraudulently induce the said R. V. Colbert to exchange his said three hundred dollars in money for a draft," etc. This is a distinct allegation of an exchange, and, in our...