Gibson v. State
| Decision Date | 18 June 1919 |
| Docket Number | (No. 5416.) |
| Citation | 214 S.W. 341 |
| Parties | GIBSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
Willie Gibson was convicted of theft of property of the value of more than $50, and he appeals. Affirmed.
E. A. Berry, Asst. Atty. Gen., for the State.
Appellant was convicted of theft of property of the value of more than $50 in the district court of Kaufman county, and his punishment fixed at ten years in the penitentiary.
No brief is on file in behalf of the appellant, and the record is bare of exceptions either to the charge of the court or the introduction of any testimony. The motion for new trial raises but one question in such manner as to call for our consideration, namely, that under the evidence no case is made of a violation of any law of this state.
The indictment against appellant is in the ordinary form for felony theft of personal property, and charges the taking of $200 in money, etc.
In order to constitute theft under our general statute, the taking of the property must be wrongful and without the owner's consent, but in article 1332, Penal Code, our Legislature specifically provides that, though the taking be with the owner's consent, yet, if such consent be obtained by any false pretext, or if the taking be obtained with any intent to deprive the owner of the value thereof and to appropriate the same to the use and benefit of the taker, and the property is so appropriated, then the offense of theft is complete.
In the early case of Hornbeck v. State, 10 Tex. App. 408, Judge Winkler, in discussing a conviction under this article of our statutes, says:
"To constitute the offense as defined in this article, the taking being originally lawful, possession must be obtained either by the employment of some false pretext, or it must be obtained with an intent existing in the mind of the taker, at the time the possession was obtained, to deprive the owner of its value and to appropriate the property to the use and benefit of the taker, and, besides these requisites, such a taking would not be complete so as to constitute the crime of theft, until the taker has so appropriated the property to his own use and benefit."
This statement of the law is correct, and in any case of theft wherein there is proof of appropriation, and that the possession of the alleged stolen property was obtained with the owner's consent, if it appear that such possession was obtained by either a false pretext or that when the property was obtained by the taker there existed a present intent to appropriate, in either case this will be sufficient. Many cases have been before this court on widely different facts showing many varieties of false pretext in order to obtain possession of property. The rule in swindling cases that the false representations must be as to something present or past is held to have no application in a case where the charge is theft by false pretext. Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85; Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Bink v. State, 50 Tex. Cr. R. 452, 98 S. W. 249; Lewis v. State, 75 Tex. Cr. R. 509, 171 S. W. 217. This court has affirmed cases where the false pretext was some form of borrowing (Porter v. State, supra), or some form of sale where the purchaser acquired the property by what the jury found to be a false promise to pay (Anderson v. State, supra).
The distinction between the offense of swindling and theft by false pretext, as deduced from the opinions of this court, seems to depend upon whether the injured party was induced to part or intended to part with both title and possession of his property, in which event the case is swindling, or whether he intended to part only with possession, in which event it will be theft by false pretext.
In the instant case the prosecuting witness was an aged and ignorant white man who was induced to believe, and evidently did believe, according to the opinion of the jury, that two negroes, one of whom was appellant, had found a pocketbook containing, among other things, a $100 bill and a $500 bill, the contents of which said pocketbook said negroes proposed to divide equally among themselves and the prosecuting witness if they could only make change in such form as that the money could be divided. One of the negroes at one stage of the proceedings left and pretended to go to see his employer to get him to change the money, but, coming back, said that "the boss man didn't have change to change up the money in the purse and that we would have to get the change to change it up." In discussing how the money could be changed, appellant claimed to have only $100 and the prosecuting witness had but $8, but said witness told the two negroes that he had some money in the bank that he had borrowed to live on, and at their insistence he went to the bank and drew out $200. Appellant went with him to the bank, saw him draw out the money, and they returned together to where the other waiting negro was. When they got back appellant took out some paper wrapped up tight and handed it to the other negro, saying there was $100. The other negro asked if there was really that amount of money in the paper and appellant stated there was, and the other said to appellant, "Ain't you got no more change," and appellant produced and handed over another dollar. The prosecuting witness delivered his $200 to the other negro, who thereupon said, "Ain't you got no change?" and prosecuting witness said he only had $8 more, which he needed; but the negro said, "The boss man wants it so he can get change out of it, and, of course, you will get your money back." Thereupon the prosecuting witness handed over his other $8. Thereupon the other negro left appellant and the prosecuting witness, but presently came back and said the boss man could not make change before night, and when informed that the prosecuting witness could not meet them that night, said negro promised to be at the post office the next day at 10 o'clock with the prosecuting witness' money in an envelope. They parted under this agreement. Later, and after conferring with friends about the matter and when the prosecuting witness told his story, the two negroes were...
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State v. Mellenberger
...similar to those in the decision just reviewed. In Williams v. State, 84 Tex. Crim. Rep. 626, 209 S.W. 655, and in Gibson v. State, 85 Tex. Crim. Rep. 462, 214 S.W. 341, the facts were similar to those in State v. Posey, supra. In State v. Crowley, supra, in which the court declared that "t......
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...contention and find the evidence amply sufficient to support the verdict. Porter v. State, 4 S.W. 889, 67 Tex.Cr.R. 578; Gibson v. State, 85 Tex.Cr.R. 462, 214 S.W. 341; Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449; Vaughn v. State, 138 Tex.Cr.R. 62, 134 S.W.2d 290; Sherman v. State, ......
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...it, become guilty of theft, notwithstanding the acquisition with fraudulent intent. As summarized by Judge Lattimore in Gibson's Case, 85 Tex. Cr. R. 464, 214 S. W. 341, it is "The distinction between the offense of swindling and theft by false pretext, as deduced from the opinions of this ......
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...but with the title to the property received by the accused. Sims v. State, 28 Tex. App. 447, 13 S. W. 653, 654; Gibson v. State, 85 Tex. Cr. R. 462, 214 S. W. 341, 342, par. 3. Article 1546 of the Penal Code enumerates certain specific ways in which the offense of swindling may be committed......