Lieske v. State
| Decision Date | 09 November 1910 |
| Citation | 131 S.W. 1126 |
| Parties | LIESKE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Fayette County; L. W. Moore, Judge.
Arthur Lieske was convicted of swindling, and he appeals. Reversed and remanded.
Brown & Lane and H. H. Sagebiel, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
The appellant was indicted and tried in the district court of Fayette county on a charge of swindling, resulting in his conviction, with a penalty of four years' confinement in the penitentiary. From this conviction he has appealed to this court, assigning various errors committed in the trial of the case. In view of the disposition that we shall make of this case, it becomes unnecessary to notice the numerous errors assigned.
The bill of indictment alleged that the appellant, devising and intending to secure the unlawful acquisition of $250, current money of the United States, of the value of $250, then and there the corporeal personal property of and belonging to one Wessels, and with the intent to appropriate said property when so acquired, did then and there unlawfully and fraudulently acquire possession of said property by means of false and fraudulent pretenses, setting out the said pretenses. This is the description of the property that it is alleged that the defendant acquired through the false and fraudulent pretenses. In the trial of the case the witness Wessels testified that about the 10th or 11th of July, 1908, the defendant desired to trade some land to him, representing that he was the owner of said land and had the authority to sell it; that he entered into a written contract with the defendant, the contract being that he was to pay $750 for the land, and that he gave to the prosecuting witness an option on the land until January 1, 1909, and for this option he paid the defendant by giving him a check for $250 on a bank; that that was all the consideration that passed between them; that he paid defendant no money, but simply gave him a check for $250. The defendant objected to this testimony, because it does not support the allegation in the bill of indictment, and that there was a variance. He also asked the court to instruct the jury to acquit defendant, because the proof did not support the allegation in the bill of indictment, and that proof of the giving of a check did not support the allegation in the bill of indictment, which alleged that the defendant fraudulently acquired the possession of $250 current money of the United States.
In cases of swindling, embezzlement, and theft, where a party is charged with acquiring the possession unlawfully and fraudulently of certain property, and the...
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State v. Sheehan
...... false pretenses is not sustained by proof of obtaining a. check or other order for payment of money. (People v. Cronkrite, 266 Ill. 438, 107 N.E. 703; People v. Warfield, 261 Ill. 293, 103 N.E. 979; Lory v. People, 229 Ill. 268, 82 N.E. 261; Lieske v. State, 60 Tex. Crim. 276, 131 S.W. 1126; State v. Gibson, 169 N.C. 318, 85 S.E. 7; State v. Mispagel, 207 Mo. 557, 106 S.W. 513; Lancaster v. State, 9 Tex. App. 393; Commonwealth v. Howe,. 132 Mass. 250; Goodhue v. People, 94 Ill. 37;. Carr v. State, 104 Ala. 43, 16 So. 155; Bates v. ......
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Johnson v. State, PD-0197-17
...was a check, there must be additional evidence that the check was also endorsed, cashed or negotiated. See Lieske v. State , 60 Tex.Crim. 276, 131 S.W. 1126, 1126–27 (1910) (finding a fatal variance between an indictment alleging the unlawful acquisition of United States currency and the ev......
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State v. Small
...sustained by proof that he received a check from Oldham & Henderson for $ 250 payable to May Dobbins, which he delivered to her. Leiske v. State, 131 S.W. 1126; same case, 60 Tex. Crim. App. 276; State v. 83 S.C. 309; Jamison v. State, 37 Ark. 445. "The allegation of ownership of property o......
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Wimer v. State
...of the indictment and the proof with respect to the property obtained by him from the injured party. In the case of Lieske v. State, 60 Tex. Cr. R. 276, 131 S. W. 1126, the indictment alleged that the accused secured $250 in money of the United States upon false representations, while the p......