Lewis v. State

• Decision Date: 11 November 1914
• Docket Number: (No. 3275.)
• Citation: 171 S.W. 217
• Parties: LEWIS v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 217

LEWIS v. STATE.

(No. 3275.)

Court of Criminal Appeals of Texas.

November 11, 1914.

On Motion for Rehearing, December 9, 1914.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

J. Vance Lewis was convicted of theft, and he appeals. Affirmed.

J. M. Gibson, W. W. Wander, and Norman G. Kittrell, Sr., all of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of theft, and his punishment assessed at three years' confinement in the state penitentiary.

The evidence in this case would show that Ida Childress was arrested in Harris county, charged with a misdemeanor alleged to have been committed in Nacogdoches, Tex. When she was so arrested, she was in Harris county. As to who employed J. Vance Lewis to represent her is a disputed question. The state's evidence is that he was employed by a sister of Ida Childress, Annie Baxter, who says that he charged her a fee of $10 and she paid it to him.

Appellant's contention is that he was not employed by Annie Baxter to represent Ida Childress, but he was employed by Hattie Bullock, and that his fee was $125, and all the money he received from Hattie Bullock was in payment of that fee. Hattie Bullock and Annie Baxter deny this, and say that Annie Baxter employed appellant and paid him, and all the money received by appellant from Hattie Bullock was money to be used as bond for Ida Childress. Anyway, it appears conclusively from this record that appellant was employed to represent Ida Childress; that he sued out a writ of habeas corpus before Judge Robinson, and no bond of any character was required on the hearing. Now, the state's testimony is that when the hearing was had appellant went to Hattie Bullock, a cousin of Ida Childress, and represented to her that the bond of Ida Childress was fixed at $100, and he wanted her to assist in making the bond. She said she did not have that much money, but had $50 which she would put up, and did put up, on the bond for Ida Childress. Appellant said this was all right; he would put up the remainder. Ida Childress was discharged by Judge Robinson. Several days thereafter appellant approached Hattie Bullock and told her that the bond of Ida Childress had been increased and he needed $75 additional to put up as bond for Ida Childress, which would be returned to her in 60 days. Hattie Bullock gave appellant this $75, and on this transaction this prosecution is based.

The state's contention is that under article 1332 of the Penal Code this constituted "theft"; that article providing that if the money was obtained by any false pretext, with the intent to deprive the owner of the value thereof, and with the intent to appropriate the money to the use and benefit of the person taking it, it would constitute theft.

Appellant's contention is that, even though the money was obtained under the circumstances detailed by the state's witnesses, the crime proven would be "swindling" under article 1421 of the Penal Code, and appellant could not be convicted under an indictment charging him with theft. Article 1421 provides that the "acquisition of any * * * money * * * by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring," is swindling.

These two articles of the Code, which to a casual reader would indicate that the Legislature had defined the same state of facts to constitute two separate and distinct offenses — theft by fraudulent pretext, and swindling — have often been before this court, and a line of demarcation has been clearly and distinctly marked out, as to what will constitute theft under article 1332, and what acts will constitute swindling under article 1421. In Underwood v. State, 49 Tex. Cr. R. 285, 91 S. W. 572, this court, speaking through Judge Brooks, said:

"The unbroken line of authorities in this court lay down the proposition that where the money is obtained by false pretenses, and the party intended at the time the same was obtained to part with both the title and possession of the money, these facts make out a case of swindling, and not theft. The facts before us, as stated above, show that prosecutor intended to part both with the title and possession of the money; and hence this prosecution should have been brought for swindling and not theft. Taylor v. State, 32 Tex. Cr. R. 110, 22 S. W. 148; Frank v. State, 30 Tex. App. 381, 17 S. W. 936; Pitts v. State, 5 Tex. App. 122; Williams v. State, 34 Tex. Cr. R. 523, 31 S. W. 405; Powell v. State, 44 Tex. Cr. R. 273, 70 S. W. 968; Price v. State [49 Tex. Cr. R. 131, 91 S. W. 571], decided at Tyler term, 1905."

In the case of Bink v. State, 50 Tex. Cr. R. 448, 98 S. W. 865, this court, speaking through Judge Henderson, said:

"The material question is whether this conviction can be sustained for theft. Appellant contends that it cannot; that if he is guilty of any offense it is swindling and not theft, inasmuch as the evidence without controversy shows that the fee in the property was acquired by him by means of a false pretext, and not the mere possession of the property. We understand our decisions on this point to hold that the acquisition of the title to the property — that is, the fee in the property — if it is acquired by means of the false pretext, it is swindling; whereas, if the mere possession of the property is parted with by means of the false pretext, it is theft. Articles 861, 674, Penal Code; State v. Vickery, 19 Tex. 326; May v. State, 15 Tex. App. 430; Sims v. State, 28 Tex. App. 447 ; Price v. State, 49 Tex. Cr. R. 131, 91 S. W. 571; Curtis v. State, 31 Tex. Cr. R. 39 ; Johnson v. State, 46 Tex. Cr. R. 415 ."

And in the case of Bink v. State, 50 Tex. Cr. R. 452, 98 S. W. 250, this court, speaking through Judge Davidson, said:

"There is and has been, in England and America, and it is true in Texas, a marked distinction between theft and swindling. Article 861, Penal Code, provides, in substance, that if the possession of the property is wrongfully obtained, it is theft if the purpose at the time of obtaining the property was to appropriate it, or if it was obtained by false pretenses for the purpose of appropriating it. Article 877 provides that, wherever property is obtained by contract of borrowing or other bailment, and the property is subsequently appropriated, it constitutes theft. But, under these statutes and all of the law of theft, the distinction between that crime and swindling is found in this: That in theft the title to the property is not an issue. In swindling the passing of the title is necessary. The rule may be stated in this way: `The true distinction between theft and swindling, where the property is acquired by means of false pretenses, is this: If the owner was induced to part with his property finally by means of the false pretenses, the offense is swindling. But where the possession delivered by the owner was obtained in a manner not sufficient to pass title to the property, the owner only intending to part with the possession and custody and not the title to his property, and the party so acquired possession then and there entertaining the fraudulent intent to appropriate it and did appropriate it, the offense is theft.' In this state, this is the distinction made by the statutes in regard to swindling and theft, and has been recognized by all the decisions in an unbroken line, commencing with White v. State, 11 Tex. 769. See, also, State v. Vickery, 19 Tex. 326; Cline v. State, 43 Tex. 494; Pitts v. State, 5 Tex. App. 122; Hudson v. State, 10 Tex. App. 215; Frank v. State, 30 Tex. App. 381 ; Curtis v. State, 31 Tex. Cr. R. 39 ; Taylor v. State, 32 Tex. Cr. R. 110 ."

It is thus made plainly manifest that, if by the fraud practiced the title to the property passed to the person obtaining it, the offense is swindling and not theft; on the other hand, if the mere possession of the property was obtained by the fraud practiced, and the title to the property did not pass to the person obtaining it, such acts constituted theft under the provisions of the Code hereinbefore cited. So the question in this case is: Does the evidence offered in behalf of the state show that the mere possession of the property passed to appellant, or does it show that the title to the property passed to appellant? If the title passed, the conviction cannot be sustained; if the mere possession of the money passed and not the title to it, the acts constituted theft and not swindling. The law is thus made plain, and it only remains to be determined what the facts would show.

Hattie Bullock testifies that the $75 was obtained from her by appellant by the representation that the bond of Ida Childress had been increased, and that she gave him the money to be deposited in lieu of a bond, to be returned to her in 60 days. Annie Baxter also so testifies. Under this testimony, the title to the money did not pass to appellant — merely the possession of it, to be deposited in lieu of a bond, and the prosecution, if maintained at all, was necessarily brought under the article of the Penal Code charging appellant with theft of the money by fraudulent pretext, for the identical money was to be returned in 60 days. The evidence does not raise the question of a loan to appellant. He says this $75 was paid to him as a fee in the Ida Childress case, and at the request of appellant the court instructed the jury that if the money was paid to appellant as a...