Lovell v. State

• Decision Date: 01 February 1905
• Parties: LOVELL v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W. 758

LOVELL v. STATE.

Court of Criminal Appeals of Texas.

February 1, 1905.

On Rehearing, March 22, 1905.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Joe Lovell was convicted of theft, and appeals. Affirmed.

W. P. Hancock and Tom Whipple, for appellant. Mark Smith, Co. Atty., W. H. Fears, and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of theft over the value of $50, and his punishment assessed at two years' confinement in the penitentiary. The indictment follows the approved, stereotyped forms and precedents. The proof shows, in substance, without quoting in detail, that appellant went to John Copeland, and represented to him that he had made arrangements with the county attorney of Ellis county, by and under which agreement the county attorney had agreed to dismiss a prosecution of some character against Copeland then pending in one of the courts of Ellis county. It seems appellant represented in that connection to Copeland that he (Copeland) was accused in the neighborhood of debauching a young lady, and she had gone to the county attorney with the view of instituting prosecution, and that appellant had secured the agreement from the county attorney that he would dismiss the prosecution for the sum of $80. In order to pay the county attorney for this service, Copeland turned over to appellant $80 in money, and $5 additional to pay appellant's expenses to the town of Waxahachie. The evidence conclusively shows that the county attorney had no knowledge of or consent to any agreement or statement made by appellant to Copeland, and, further, appellant admitted he had never had any such talk with the county attorney, nor had he contemplated having such conversation, but that he made said false representations to Copeland solely with the view of getting possession of his money. Among other things, the jury were instructed that if the taking, although originally lawful, was obtained by false pretext, or with the intent to deprive the owner of the value thereof, and to appropriate the property taken to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete. The learned trial court predicated this charge upon that clause of article 861, Pen. Code, which provides: "But if the taking, though originally lawful, was obtained by any false pretext or with intent to deprive the owner of the value thereof," etc., "the offense of theft is complete." The question presented, then, is whether the foregoing facts make out a theft, under the provisions of said article. We hold that they do not. Mr. Bishop, in his work on Statutory Crimes, § 133, lays down the proposition: "However unqualified the enactments against cheating by false pretenses may be in their terms, numerous limitations drawn from the reasons of the common law, as well as from considerations of their objects and purposes, incumber their practical application." And again Mr. Bishop (Cr. Law, § 468) says: "Another doctrine sustained in New York is that where, if the false pretenses were true, the person parting with his goods would be guilty of a crime, or where he actually commits an offense in parting with them, the indictment for the cheat cannot be maintained." And see, also, section 432. And see Wharton, Cr. Law, § 1151. In McCord v. People, 46 N. Y. 470, appellant, being an officer, stated that he had a warrant issued from one of the police justices of New York, charging prosecutor, Chas. C. Miller, with a criminal offense, and for his arrest; and prosecutor, in order to secure his release from said arrest, offered and delivered to appellant a gold watch and a diamond ring. The evidence showed that appellant had no warrant for prosecutor. He was thereupon prosecuted for swindling and obtaining said money by false and fraudulent pretenses. In passing upon the question the court uses this language: "The prosecutor parted with his property as an inducement to a supposed official to violate the law and his duties, and if, in attempting to do this, he has been defrauded, the law will not punish his confederate, although such confederate may have been instrumental in inducing the commission of the offense. Neither the law nor public policy designs the protection of rogues in their dealings with each other, or to enforce fair dealing and truthfulness as between each other in their dishonest practices. The design of the law is to protect those who for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and to protect those who for unworthy or illegal purposes part with their goods." Citing State v. Crowley, 41 Wis. 282, 22 Am. Rep. 719.

Reverting to the facts above, we find that Copeland paid money to appellant for the purpose of bribing an officer. Can he be heard to say in any court that he relied upon such promise? The law will not permit him to rely upon an illegal promise. Before a pretext or false representation can be the basis of a prosecution, it must be such a pretext as, if true, would at least be lawful. If it is not lawful, then no citizen has a right to rely upon the false pretext. Having no right to rely upon it, it cannot, in contemplation of law, be a false pretext. Hence appellant's acts do not come within the purview of this statute. To hold otherwise places the law in an anomalous condition. If, according to the terms of the statute, appellant had obtained through false pretexts the money of prosecutor in the first instance, and appellant is solvent, prosecutor could sue appellant in the courts and recover the money; but, having entered into an illegal conspiracy with him for the purpose, as alleged, of bribing an officer, no court would give him a judgment for money obtained from him for such illegal purpose. Hence it would be anomalous to hold that the prosecution against appellant could be maintained, and yet a civil suit could not be successfully prosecuted. It may be that appellant is guilty of conspiracy to bribe an officer, or some other offense; but, under the terms of the statute, and the spirit, object, and purpose of it—being to suppress, and not to perpetrate or assist in the perpetration of, crime—we hold appellant is not subject to prosecution under this statute.

The judgment is...