Lively v. State
| Decision Date | 11 February 1903 |
| Parties | LIVELY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Navarro County; L. B. Cobb, Judge.
Aaron Lively was convicted of swindling, and he appeals. Reversed.
Ballew & Wheeler and D. G. Grantham, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of swindling, the same being a misdemeanor, and his punishment assessed at a fine of $25, and confinement in jail for one day; hence this appeal.
Appellant asked certain charges, which were refused by the court, and he assigns this as error. On the trial it was proven that appellant at the time he made the representations, and executed the mortgage which is the basis of this prosecution, was under 21 years of age, and the requested charges are predicated on the proposition that appellant, being a minor, could not be convicted of this offense. The indictment charges substantially that appellant represented to the prosecutors, Walker & Chilcoat, that his name was G. W. Shorter, and that he owned one bay horse and a bay mare, and 22 acres of growing cotton, and executed to the prosecutors a mortgage on said property, including the buggy and harness, all of which was false, and thereby induced them to sell to him said buggy and harness. The mortgage is set out in the indictment, as is required by law. Hardin v. State, 25 Tex. App. 74, 7 S. W. 534; Fergurson v. State, 25 Tex. App. 451, 8 S. W. 479.
In Jones v. State, 31 Tex. Cr. R. 252, 20 S. W. 578, it was held that a minor could not be convicted of disposing of mortgaged property, on the ground that, being under age, he could not execute a valid mortgage; that such instrument was voidable, and subject to disaffirmance by him; and that case has since been followed. We understand appellant to invoke the principle announced in the Jones Case in support of his contention here; that is, he contends that, the mortgage being an essential part of the state's case, and appellant being a minor at the time of its execution, the same is subject to his disaffirmance, and, being voidable at the option of the minor, it is of no account, and a prosecution for swindling by means of false pretenses cannot be maintained. However, as we understand the Jones Case, the criminal act was in the disposition of the mortgaged property; and the court there held that, inasmuch as the law gave appellant the right to disaffirm, a criminal statute that made his disaffirmance a crime was illegal. It may be conceded that the principle announced in said case is correct. At any rate, it is not necessary to overrule that case upon the question there decided. The crime of disposing of mortgaged property is an act subsequent to the execution of the mortgage, while here the obtention of the property by false pretenses preceded the execution of the mortgage, and the false pretenses were merely the inducement to the execution of the same. Although the pretenses were false, the prosecutors were induced thereby to accept a mortgage on property which in fact had no existence. That mortgage, so far as we are advised in this record, is still a valid and subsisting mortgage, having never been disaffirmed. The property in question was procured by means of the false pretenses, and we hold that a prosecution under such circumstances can be maintained. People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240.
Appellant contends that the buggy and harness were not necessaries for the infant, and that the court should have given certain requested special instructions on this subject. But in the view we have taken herewith it is not necessary to discuss this question. It does not matter whether the buggy and harness were necessaries for the infant or not. The fact that he procured them by means of false pretenses makes out the case, and it was not necessary for the state to show that the property purchased by him was necessaries. See People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240. If the mortgage were absolutely void at its inception, and it was a necessary element in connection with the false pretenses in obtaining the property, another question would arise; but, the mortgage being merely voidable, it is not necessary to discuss the question, if the instrument were absolutely void and of no effect.
It was not error on the part of the court to give in charge article 946, Pen. Code. We do not believe there is any inconsistency between this and the subsequent articles referred to. The article in question makes the willful design to defraud the essential element of the offense, regardless of whether any person was actually injured or not.
No error appearing in the record, the judgment is affirmed.
On Rehearing.
(April...
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Anderson v. State
... ... instruction No. 3 insufficiently stated the elements of the ... offense and was erroneous, Martins v. State, supra. Refusal ... to give defendants requested instruction No. 1 was erroneous, ... for the reason that it did not state the law relating to the ... elements of the offense. Lively v. State, 74 S.W ... 321. The Court erred in giving instruction No. 1 of the state ... wherein it was set forth that complaining witness was ... defrauded by defendant. ( U. S. v. Cook, 17 Wall ... 174; 21 L.Ed. 538.) The Court erred in stating to the jury ... during defendant's testimony ... ...
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Green v. State, 21992.
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