Howk v. State, 20722.
| Decision Date | 17 January 1940 |
| Docket Number | No. 20722.,20722. |
| Citation | 135 S.W.2d 719 |
| Parties | HOWK v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Leon County Court; C. G. Haley, Judge.
O. L. Howk was convicted of swindling, and he appeals.
Reversed and prosecution ordered dismissed.
Jack Flock, of Tyler, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
In a trial before the court appellant was convicted of swindling by means of giving a check to one Katherine Stovak, when he had no funds in the bank on which the check was drawn at the time of giving such check, etc.
In the outset of this case we are met with a motion to quash the complaint and information because of the following portion thereof: "That she has good reason to believe and does believe that heretofore, to-wit: on or about the 12th day of June A. D. 1938, and before the making and filing of this complaint, in the County of Leon and State of Texas, O. L. Howk did then and there unlawfully and fraudulently, and by the use of false and deceitful pretenses and devices and fraudulent representations, acquire from the possession of Cresent Cafe, owned by Katherine Stovak certain corporeal personal property belonging to the said Katherine Stovak, to-wit: personal property of the value of Six Dollars, with the intent to deprive the said Katherine Stovak of the value thereof," etc.
It is our opinion that "personal property of the value of six dollars" is too general an allegation to apprise appellant of the charge against him. It would include any and all kinds of property to that value, except real estate.
Art. 403, C.C.P., reads: "When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. * * *"
In Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095, we held, in substance, that allegations of like import to the instant case should be direct and positive, and as nearly as possible should describe the personal property,—not merely classify it as such, The description herein given is as wide as it could possibly be, the statute being based only upon the unlawful acquisition of personal property.
In the case of Scott v. State, 125 Tex. Cr.R. 396, 67 S.W.2d 1040, we held an indictment fatally defective that merely described the property acquired by the alleged swindle as "certain lubricating oil."
It is plain, also, that the pleader knew that the property so...
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Wood v. State, 67486
...532 S.W.2d 333 (Tex.Cr.App.1976); "tires," Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); "personal property," Howk v. State, 138 Tex.Cr. 275, 135 S.W.2d 719 (1940); "furniture and equipment," Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095 (1920); Rodgers v. State, 448 S.W.2d 465 (Tex.Cr.......
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Moore v. State
...defective as to require reversal even though there was no motion to quash. Luce v. State, supra; Scott v. State, supra; Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719; Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817, were cited with approval. Cf. Mankin v. State (Tex.Cr.App.1970) 451 S.W......
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Oakley v. State, 30177
...of this Court in Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095; Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040; Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719; and Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817, is so fundamentally defective as to require a reversal even though there......
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Moore v. State
...defective as to require reversal even though there was no motion to quash. Luce v. State, supra; Scott v. State, supra; Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719; Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817, were cited with approval. Cf. Mankin v. State (Tex.Cr.App.1970) 451 S.W......