Hubbert v. State

• Decision Date: 01 May 1912
• Citation: 147 S.W. 267
• Parties: HUBBERT v. STATE.
• Court: Texas Court of Criminal Appeals

147 S.W. 267

HUBBERT v. STATE.

Court of Criminal Appeals of Texas.

May 1, 1912.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

W. E. Hubbert was convicted of swindling, and appeals. Reversed.

Langford & Chesley, J. L. Lewis, and Eidson & Eidson, all of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with swindling, tried and convicted, and his punishment assessed at two years' confinement in the penitentiary.

According to the theory of the state, appellant approached one T. H. Moss and represented to said Moss that he was being pressed on a vendor's lien note of the amount of $1,000, with accumulated interest; that the farm against which this note was a lien was worth $6,000; that this note was all he owed, except some small monthly accounts around town, and he (appellant) was in good financial condition, but would lose this farm, unless he could raise the amount due, and requested Moss to sign his (appellant's) note, with others, to enable appellant to raise this sum; that Moss relied on these statements and signed the note of appellant for $1,250, due one year after date, together with H. O. Johnson and H. G. Driver; the note being signed by Driver subsequent to the time it was signed by Moss. The note is a joint note, and on its face all would be principals; but the facts would show that appellant, Hubbert, was the principal in the note, and Johnson, Moss, and Driver were his sureties. The state's evidence would tend to show, and the jury must have evidently so found, that the farm was not worth $6,000, or any amount near that sum; that the note due by appellant on this place was not all he owed, but he was indebted at that time in other and large amounts; that he was not in good financial condition, but was in fact insolvent at the time he procured the signatures of Moss and the others to the note; and that other representations, claimed by Moss to have been made to him by appellant to secure his signature to the note, were in fact untrue.

1. Appellant moved to quash the indictment; one of the grounds being that an indictment for swindling would not be based on these facts. In this we do not think he is correct. By article 943 of the Penal Code, it is provided that swindling is securing a valuable right by means of some false or deceitful pretense or device or fraudulent representation, with the intent to injure the rights of the party alleged to be swindled. And it is specially provided that the definition of swindling shall include any case which, by fair construction of the language, comes within the meaning of the language used in the statute. So, if one goes to another, and by representing to him that he is solvent and responsible for all his debts, that he owes only a limited amount (naming it), and owns property of the value greatly in excess of said amount so claimed to be indebted, and that a named person will loan him a given amount if he (the person to whom the representations are made) will sign his note, that he is in urgent need of the money to pay a note, and thereby the property will be freed from debt, and become liable for the debts due by the person making the representations, and the person so approached is by said representations, relying solely thereon,...