Haley v. State

• Decision Date: 20 June 1934
• Docket Number: No. 16834.,16834.
• Citation: 75 S.W.2d 272
• Parties: HALEY v. STATE.
• Court: Texas Court of Criminal Appeals

75 S.W.2d 272

HALEY v. STATE.

No. 16834.

Court of Criminal Appeals of Texas.

June 20, 1934.

Rehearing Denied October 24, 1934.

Appeal from District Court, Bexar County; W. W. McCrory, Judge.

M. C. Haley was convicted of theft, and he appeals.

Affirmed.

Herman G. Nami and Frank Vaughan, both of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

There were but two witnesses in the case, both testifying for the state. Mrs. Doak, a widow, seventy-two years of age, had been swindled out of $3,800. Appellant went to see her and represented to her that he worked with the chief of police and some secret service men, and that, if she would give him $200 to be split by him three ways with the parties he worked with, she would get her money back out of which she had been swindled. She gave him her check for $200, which he collected and appropriated. The charge here was theft of the check. Mr. Kilday, chief of police of San Antonio, testified that appellant and he had no sort of connection, and had never worked together, and, in substance, that appellant's representations to Mrs. Doak were false about his work with the chief to recover Mrs. Doak's money. After the prosecution in this case was begun, appellant's wife returned to Mrs. Doak the money gotten by him from her on this check and another similar check.

We do not think appellant's attack upon the indictment, based on its failure to use the word "personal" in describing the kind of property alleged to have been stolen, is sound. The check alleged to have been stolen was accurately described in the indictment, which further alleged that same was the "corporeal property" of Mrs. Doak. We do not see any material error in the omission of the word "personal." That the check, by the very terms of the allegation and its description, was personal property, would be without dispute. The word "corporeal" means nothing more here than that the property taken shall be tangible and have form and substance. We said in Worsham v. State, 56 Tex. Cr. R. 253, 120 S. W. 439, 18 Ann. Cas. 134, that a check is personal property. Neither was there error in the court's action in referring to the check, in his charge, as corporeal personal property.

A number of bills of exception complain of various parts of the argument made by the state's attorney in closing the case. All said bills are qualified by the trial judge with the statement that no objections were made or exceptions taken to the argument at the time same was made. It seems that appellant had a stenographer take down the entire argument of the state's attorney, and, after same was finished, apparently at his leisure appellant's attorney prepared bills of exception complaining of such parts of said argument as he thought objectionable. Such bills bring before us nothing which we can review. Nelson v. State, 99 Tex. Cr. R. 564, 270 S. W. 865; Newman v. State, 99 Tex. Cr. R. 323, 269 S. W. 87; Russel v. State, 96 Tex. Cr. R. 105, 256 S. W. 283; Edwards v. State, 91 Tex. Cr. R. 196, 237 S. W. 933; Alsup v. State, 85 Tex. Cr. R. 36, 210 S. W. 195; Gamble v. State, 66 Tex. Cr. R. 297, 146 S. W. 551.

Appellant insists in his brief and oral argument in this court that the facts show him guilty of swindling, if of anything. The legal questions involved and expressions of this court's views as to the overlapping or similarity between the offenses of theft and swindling have been so often discussed that we content ourselves with citing authorities and stating that we think the facts in this case support the theory of theft by false pretext. See Sherman v. State (Tex. Cr. App.) 62 S.W.(2d) 146; Contreras v. State, 118 Tex. Cr. R. 626, 39 S.W.(2d) 62; De Blanc v. State, 118 Tex. Cr. R. 628, 37 S.W.(2d) 1024; Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908; Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

Appellant obtained $200 from Mrs. Doak upon the false representation to the effect that he had associations with the police which would enable him to recover her lost money.

Appellant insists that the conviction must be reversed, for the reason that the facts show a case of swindling and not a case of theft. He supports his contention with the citation of several decisions of this court, notably, Arnold v. State, 76 Tex. Cr. R. 512, 176 S. W. 159; Segal v. State, 98 Tex. Cr. R. 485, 265 S. W. 911, 35 A. L. R. 1331; Slack v. State, 111 Tex. Cr. R. 417, 13 S.W.(2d) 113; Elbury v. State, 114 Tex. Cr. R. 269, 25 S.W. (2d) 846; Pittman v. State, 115 Tex. Cr. R. 424, 27 S.W.(2d) 240. The Arnold Case, supra, and perhaps others drew a distinction between the offense of theft by false pretext and swindling which apparently overlooked the law embraced in article 1549, P. C. 1925, which reads as follows: "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."

In the case of Witherspoon v. State (Tex. Cr. App.) 37 S. W. 433, it is held, if the fraud charged constitutes another offense, d...