Johnson v. State

• Decision Date: 13 May 1942
• Docket Number: No. 22123.,22123.
• Citation: 162 S.W.2d 980
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

162 S.W.2d 980

JOHNSON v. STATE.

No. 22123.

Court of Criminal Appeals of Texas.

May 13, 1942.

Rehearing Denied June 24, 1942.

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

B. W. Johnson was convicted of theft, and he appeals.

Affirmed.

O. S. Evans and Joe Burkett, both of San Antonio, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction on a charge of theft with a sentence of two years in the penitentiary.

The indictment in the case alleges theft of property over the value of $50 from Bernice V. Kelly. The evidence in the case from the standpoint of the State, without any serious contradiction on the part of the defense, is to the effect that the appellant, who lived in the town of Comfort, some distance from San Antonio, came in contact with the injured party and her mother through an advertisement seeking financial aid in a business enterprise. He represented to them that he was the owner of the equipment in a motion picture theater in Comfort and had a lease on the building. After some negotiations they entered into what appeared to be a very favorable contract by which the injured party paid to appellant $750 in money for the purchase of a one-third interest in the equipment of the theater and tavern. She also had an agreement that he was to pay back this $750 in weekly salaries to her of $15 per week for the first ten weeks and at $20 thereafter. A few such payments were made. Upon his failure to continue these payments she employed a lawyer and attempted to make a collection of the amounts due her. An investigation revealed the fact as proven by the State that he did not own the properties which he represented to the injured party and her mother to be his and in which they understood the daughter was purchasing an interest.

The one question raised in this case and seriously presented is that the property was willingly transferred to appellant and that his act, even though wrongful, would not be theft. We are unable to agree to this proposition. Article 1413 of the Penal Code provides that when property comes into possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft. This article also provides that when the property is obtained by false pretext "or with any intent to deprive the owner of the value thereof" and to appropriate it to the use of the person taking, that the offense of theft is complete. This question has been thoroughly discussed in the recent case of McCuistion v. State, Tex.Cr.App., 158 S.W.2d 527, and the statements there made with the authorities cited in support of the things said pertaining to the issue before us are deemed sufficient and will eliminate the necessity for a lengthy discussion of the question in the instant case. Appellant admitted in his own testimony that he was selling them a one third interest in the property, which the evidence shows he did not own. He immediately appropriated the money to his own use and benefit and the surrounding circumstances were such as to amply justify the jury in reaching the conclusion that he had such intent at the very time he made the false representations. The charge of the court properly presents the matter to the jury and their conclusions on the facts are final.

Appellant presented a motion for a continuance on account of the absence of his son B. W. Johnson, Jr., who is alleged to be in the United States Marine Corp stationed in Honolulu, Hawaii. This was overruled and his bill of exception complains of the action of the court in doing so. The motion does not set out what evidence was intended to be obtained from this witness nor its effect. We are unable to say that error was committed.

Bill of exception No. 2 complains of the action of the court in admitting evidence of other indictments pending against appellant on charges of swindling. On cross-examination of appellant as a witness in his behalf he was asked if he was not charged in another indictment in Cause No. 45,941 with swindling a party out of $112.60. He was also asked about another charge of swindling a party at a different time of property over the value of $50. Appellant admitted that he was so charged and stated that the amount in this case had been paid. The court admitted this evidence over objection of appellant for the purpose of aiding the jury in passing upon the credibility of the party on trial as a witness and stated he was so restricting it in his charge, which he did. The evidence was proper.

Bills of exception Nos. 3, 4, 5 and 6 attempt to raise a matter for our consideration so well settled that we do not deem a discussion necessary. The other bills of exception likewise are overruled.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant's complaint resolves itself into the proposition that the facts herein show a swindle, if anything, rather than a theft by false pretext, in that the testimony shows a passing of both title and possession, which makes up the constituent elements of a swindle and not a theft. As authority for such proposition appellant offers the cases of Slack v. State, 111 Tex. Cr.R. 417, 13 S.W.2d...